JEWISH  EUGENICS 

AND  OTHER  ESSAYS 

THREE  PAPERS  READ  BEFORE  THE 

NEW  YORK  BOARD  OF  JEWISH  MINISTERS 
1915 

I 

JEWISH  EUGENICS 

By   Rabbi  Max  Reichler 
II 

THE  DEFECTIVE  IN  JEWISH  LAW  AND 
LITERATURE 

By   Rabbi  Joel  Blau 
III 

CAPITAL  PUNISHMENT  AMONG 
THE  JEWS 

By  Rev.  Dr.  D.  de  Sola  Pool 


NEW  YORK 

BLOCH  PUBLISHING  COMPANY 

1916 


<=>  k 


Copyright,  1916,  by 
BLOCH  PUBLISHING  COMPANY 


CONTENTS 


I.    Jewish  Eugenics 7 

II.    The  Defective  in  Jewish  Law  and 

Literature 23 

III.    Capital  Punishment  Among  the  Jews    .  53 


424753 


Jewish  Eugenics 

Rabbi  Max  Reichler.  B.  A. 


JEWISH  EUGENICS 


Who  knows  the  cause  of  Israel's  survival?  Why- 
did  the  Jew  survive  the  onslaughts  of  Time,  when 
others,  numerically  and  politically  stronger,  suc- 
cumbed? Obedience  to  the  Law  of  Life,  declares 
the  modern  student  of  eugenics,  was  the  saving 
quality  which  rendered  the  Jewish  race  immune 
from  disease  and  destruction.  "The  Jews,  ancient 
and  modern,"  says  Dr.  Stanton  Coit,  "have  always 
understood  the  science  of  eugenics,  and  have  gov- 
erned themselves  in  accordance  with  it;  hence  the 
preservation  of  the  Jewish  race."1 

I.    Jewish  Attitude 

To  be  sure  eugenics  as  a  science  could  hardly 
have  existed  among  the  ancient  Jews;  but  many 
eugenic  rules  were  certainly  incorporated  in  the 
large  collection  of  Biblical  and  Rabbinical  laws. 
Indeed  there  are  clear  indications  of  a  conscious 
effort  to  utilize  all  influences  that  might  improve  the 
inborn  qualities  of  the  Jewish  race,  and  to  guard 
against  any  practice  that  might  vitiate  the  purity  of 


1Ci.  also  Social  Direction  of  Human  Evolution,  by  Prof. 
William  E.  Kellicott,  1911,  p.  231. 

7 


8  Jewish  Eugenics 

the  race,  or  "impair  the  racial  qualities  of  future 
generations"  either  physically,  mentally,  or  morally.1 
The  Jew  approached  the  matter  of  sex  relationship 
neither  with  the  horror  of  the  prude,  nor  with  the 
passionate  eagerness  of  the  pagan,  but  with  the  sane 
and  sound  attitude  of  the  far-seeing  prophet.  His 
goal  was  the  creation  of  the  ideal  home,  which  to 
him  meant  the  abode  of  purity  and  happiness,  the 
source  of  strength  and  vigor  for  body  and  mind.8 

II.   Home  of  the  Pure  Bloods 

The  very  founder  of  the  Jewish  race,  the  patriarch 
Abraham,  recognized  the  importance  of  certain  in- 
herited qualities,  and  insisted  that  the  wife  of  his 
"only  beloved  son"  should  not  come  from  "the 
daughters  of  the  Canaanites,"  but  from  the  seed  of  a 
superior  stock.4 

In  justifying  this  seemingly  narrow  view  of  our 
patriarch,  one  of  the  Rabbis  significantly  suggests: 
"Even  if  the  wheat  of  your  own  clime  does  not 
appear  to  be  of  the  best,  its  seeds  will  prove  more 
productive  than  others  not  suitable  to  that  particular 
soil."5 

This  contention  is  eugenically  correct.  Davenport 
tells  of  a  settlement  worker  of  this  city  who  made 


2Sir  Francis  Galton  defines  eugenics  as  "the  science  which 
deals  with  all  influences  that  improve  the  inborn  qualities  of 
the  race." 

3Cf.  Ps.  cxxviii,  3-4.  The  National  Conference  on  Race 
Betterment  which  met  recently  at  Battle  Creek  declared  that 
"the  core  of  race  betterment  consists  in  promoting  more  and 
better  homes." 

4  Gen.  xxiv,  3-4. 

*Ber.  Rabbah  59,  11. 


Jewish  Eugenics  9 

special  inquiry  concerning  a  certain  unruly  and 
criminally  inclined  section  of  his  territory,  and 
found  that  the  offenders  came  from  one  village  in 
Calabria,  known  as  "the  home  of  the  brigands."8 
Just  as  there  is  a  home  of  the  brigands,  so  there  may 
be  "a  home  of  the  pure  bloods." 

Eugenists  also  claim  that  though  consanguineous 
marriages  are  in  most  cases  injurious  to  the  progeny, 
yet  where  relatives  possess  "valuable  characters, 
whether  apparent  or  not,  marriages  between  them 
might  be  encouraged,  as  a  means  of  rendering  per- 
manent a  rare  and  valuable  family  trait,  which 
might  otherwise  be  much  less  likely  to  become  an 
established  characteristic."7  Abraham's  servant, 
Eliezer,  so  the  Midrash  states,  desired  to  offer  his 
own  daughter  to  Isaac,  but  his  master  sternly  re- 
buked him,  saying:  "Thou  art  cursed,  and  my  son 
is  blessed,  and  it  does  not  behoove  the  cursed  to 
mate  with  the  blessed,  and  thus  deteriorate  the 
quality  of  the  race."8 

III.   Early  Marriages 

The  aim  of  eugenics  is  to  encourage  the  repro- 
duction of  the  good  and  "blessed"  human  proto- 
plasm   and    the    elimination    of    the    impure    and 


^Heredity  in  Relation  to  Eugenics,  by  Charles  B.  Davenport, 
New  York,  1911,  p.  183. 

1  Social  Direction  of  Human  Evolution,  p.  154;  Heredity  in 
Relation  to  Eugenics,  p.  185.  The  Biblical  expression  "a  bone 
of  my  bones"  (Gen.  ii,  23),  refers,  according  to  the  Rabbis,  to 
a  man  who  marries  one  of  his  relatives.  (Bereshith  Rabbah 
18,  5).  The  marriage  between  uncle  and  niece  is  also  recom- 
mended (Yebamoth  63b). 

8Ber.  Rabbah  59,  12 ;  cf .  Gen.  ix,  25-26. 


10  Jewish  Eugenics 

"cursed"  human  protoplasm.  According  to  Francis 
Galton,  it  is  "to  check  the  birthrate  of  the  unfit,  and 
to  further  the  productivity  of  the  fit  by  early 
marriages  and  the  rearing  of  healthful  children." 

The  Rabbis  may  or  may  not  have  had  such  a 
definite  purpose  in  mind,  but  their  Halachic  legis- 
lation and  Haggadic  observations  naturally  tended 
to  bring  about  the  same  results.  Early  marriages 
were  praised  as  most  desirable.  Rabbi  Ishmael 
claimed  that  God  was  greatly  displeased  with  the 
man  who  did  not  marry  before  the  age  of  twenty.9 
Rav  Hunah  refused  to  see  Rav  Hamnuna,  a  man  of 
great  repute  (adam  gadol),  after  the  former  discov- 
ered that  his  visitor  was  a  bachelor.10  "He  who  is 
not  married,"  runs  a  Talmudic  saying,  "is  destitute 
of  all  joy,  blessing,  and  happiness."11  "He  has  no 
conception  of  the  sweetness  of  life";12  indeed  "he 
cannot  be  regarded  as  a  man  at  all."13 

IV.  Reproduction 

Among  the  seven  types  not  acceptable  before  God 
are  included  both  the  unmarried  man  and  the 
married  man  without  children.14  A  man  without 
children  experiences  death  in  life,16  and  surely  de- 
serves our  pity  when  he  departs  from  this  earth.16 


»Kiddushin  29b. 

"Ibid. 

"Midrash  Lekach  Tob,  Gen.  2,  ed.  Buber  p.  21. 

12Ber.  Rabbah  ch.  17. 

13Yalkut  Gen.  ii,  23. 

"Pesachim  113b. 

16Nedarim  64b. 

16M.  K.  27b. 


Jewish  Eugenics  11 

For  only  he  is  dead  who  leaves  no  son  behind  to 
continue  his  work,  while  he  who  leaves  even  one 
worthy  son  is  not  really  dead  but  merely  sleeps.17 
He  who  does  not  contribute  his  share  to  the"  repro- 
duction of  the  race,  reduces  the  divine  type,18 
causes  the  Shechinah  to  depart  from  Israel,19  and 
is  guilty  of  murder.20  The  duty  of  reproduction  is 
incumbent  on  all,  both  young  and  old.21 

The  Rabbis,  like  the  eugenists  of  to-day,  measured 
the  success  of  a  marriage  by  the  number  and  quality 
of  the  offspring.  In  their  judgments  the  main 
objects  of  marriage  were  the  reproduction  of  the 
human  race  (leshem  piryah  veribyah),  and  the 
augmentation  of  the  favored  stock  (lethikun 
havlad).22  Hence  they  advised  that  an  extremely 
tall  man  should  not  marry  an  extremely  tall  woman, 
lest  the  children  be  awkwardly  tall ;  nor  should  one 
of  short  stature  marry  a  woman  of  the  same  size, 
lest  their  offspring  be  dwarfed.  For  the  same 
reason,  the  intermarriage  between  blonds  or  between 
dark-complexioned  people  was  not  countenanced.28 
A  number  of  precautions  in  sexual  relations  were 
prescribed  in  order  to  prevent  the  birth  of  defectives, 


"B.  B.  110b. 

"Yebamoth  63b. 

"Ibid.  64a. 

2<>Ibid  63b,  64a. 

"Ibid  62b.  Cf.  Koheleth  Rabbah  7,  8,  also  Social  Direction 
of  Human  Evolution,  p.  124,  concerning  pathological  defects 
of  first  born  and  earlier  members  of  the  family. 

22Cf.  Tur  Eben  Haezer  ch.  25. 

"Bechoroth  45b. 


12  Jewish  Eugenics 

such  as  lepers,24  epileptics,25  the  deaf  and  the  dumb, 
the  lame  and  the  blind.26 

V.   Intelligent  Love 

Raba  advised  every  young  man  not  to  marry  a 
girl  before  he  knew  all  about  her  immediate  family, 
especially  about  her  brothers,  for  "children  usually 
inherit  the  traits  of  their  mother's  brothers."27 
"Take  your  time,"  counsels  a  Talmudic  proverb, 
"before  you  ask  a  woman  to  be  your  wife";28  in 
other  words,  "fall  in  love  intelligently."  Other  well- 
known  Rabbinic  maxims  are:  "a  man  drinketh  not 
out  of  a  cup  which  he  hath  not  inspected,"29  and  "a 
bride  whose  eyes  are  defective,  ought  to  undergo  a 
general  physical  examination."30 

In  the  opinion  of  Rabbi  Jonathan  both  Eliezer,  the 
servant  of  Abraham,  and  Saul,  king  of  Israel,  acted 
most  indiscreetly  by  treating  marriage  in  a  rather 
frivolous  manner.  Eliezer  said :  "Behold  the  virgin 
which  will  say  drink,  and  I  will  also  draw  for  the 
camels,  that  is  the  woman  whom  the  Lord  hath 
appointed  for  my  master's  son."  Suppose  that 
woman  had  some  physical  defects,  would  she  have 
been  a  suitable  mate  for  Isaac?  Similarly  Saul 
proclaimed :  "The  man  who  killeth  Goliath,  the  king 
will  give  him  his  daughter."     If  that  man  had  been 


24Sifra,  Mezora  ch.  3. 

"Pesachim  112b. 

"Nedarim  20a. 

*7B.  B.  110a. 

28Yebamoth  63a. 

2»Kethuboth  75b. 

aoShir  Hashirim  Rabbah  4,  1-3 ;  cf .  Taanith  24a. 


Jewish  Eugenics  13 

a  slave  or  possessed  other  hereditary  defects,  would 
Saul  have  sanctioned  the  marriage?81 

VI.  Non-Eugenic  Marriages 

The  attempt  to  limit  the  multiplication  of  the 
undesirable  elements  in  the  Jewish  race,  resulted  in 
three  kinds  of  prohibitions.  First,  prohibition 
against  the  marriage  of  defectives  by  reason  of 
heredity  (pesul  yochesin)  ;  secondly,  the  prohibition 
against  the  marriage  of  personal  defectives  (debar 
shebagufon)  ;  thirdly,  the  prohibition  against  con- 
sanguineous marriages  (ervah).52 

Besides  the  prohibition  against  defective  mar- 
riages mentioned  in  the  Mosaic  code,83  the  Talmud 
forbade  one  to  marry  into  a  confirmed  leprous  or 
epileptic  family,34  or  to  marry  a  woman  who  had 
buried  three  husbands.35  The  union  between  an 
old  man  and  a  young  girl  was  condemned  in  un- 
equivocal terms.36  Persons  or  families  manifesting 
continuous  antagonism  to  each  other  were  advised 
not  to  intermarry.37  Great,  in  the  eyes  of  the  Rabbis, 
was  the  offense  of  him  who  married  a  woman  from 


31Taanith  4a. 

32Tur  Eben  Haezer,  Piryah  Veribyah,  ch.  4. 

33Deuteronomy  xxiii,  2. 

34Yebamoth  64a. 

85Niddah  64a.  It  is  interesting  to  note  that  a  late  authority 
insists  that  the  same  rule  should  apply  to  a  man  who  buried 
three  wives.    Cf.  Beer  Heteb  to  Eben  Haezer,  Ishoth  9,  2. 

36Sanhedrin  76a;  cf.  also  Yebamoth  106b  and  Ruth  Rabbah 
3,  10. 

37Kiddushin  71b.  Cf.  Heredity  in  Relation  to  Eugenics,  p.  8, 
where  the  suggestion  is  made  that  the  curious  antipathy  of 
red-haired  persons  of  the  opposite  sexes  for  each  other,  may 
be  an  eugenic  antipathy. 


14  Jewish  Eugenics 

an  element  classed  among  the  unfit.  His  act  was  as 
reprehensible  as  if  he  had  dug  up  every  fertile  field 
in  existence  and  sown  it  with  salt.38  A  quintuple 
transgression  was  his,30  for  which  he  will  be  bound 
hand  and  foot  by  Elijah,  the  great  purifier,40  and 
flogged  by  God  himself.  "Woe  unto  him  who  de- 
teriorates the  quality  of  his  children  and  defiles  the 
purity  of  his  family,"  is  the  verdict  of  Elijah 
endorsed  by  God.41  On  the  other  hand,  the  mating 
of  two  persons  possessing  unique  and  noble  traits 
cannot  but  result  in  the  establishment  of  superior 
and  influential  families.42  When  God  will  cause  his 
Shechinah  to  dwell  in  Israel,  only  such  which 
scrupulously  preserved  the  purity  of  their  families, 
will  be  privileged  to  witness  the  manifestation  of 
the  Holy  Spirit.43 

VII.  Psychical  Eugenics 

The  distinctive  feature,  however,  of  Jewish 
eugenics  lies  in  the  greater  emphasis  laid  on  the 
psychical  well-being  of  posterity,  in  contradistinc- 
tion to  the  merely  physical  well-being  which  is  the 
chief  concern  of  modern  eugenists.  At  the  Congress 
of  Eugenics  recently  held  at  London,  one  of  our 
modern  eugenists,  Professor  Samuel  C.  Smith  of 
the  University  of  Minnesota,  exclaimed :  "If  I  were 
to  choose  my  own  father,  I  would  rather  have  a 


38Kiddushin  70a. 

89Aboth  Derabbi  Nathan,  ch.  26. 

*°Cf.  Kiddushin  71a. 

"Kiddushin  70a. 

42Bamidbar  Rabbah  3,  4. 

43Kiddushin  70b. 


Jewish  Eugenics  15 

robust  burglar  than  a  consumptive  bishop."  The 
Rabbis,  on  the  other  hand,  tell  us  that  when  the 
question  came  up  whether  or  not  the  Gibeonites 
should  be  permitted  to  intermarry  with  the  children 
of  Israel,  David  tested  them,  in  order  to  ascertain 
not  so  much  their  physical  fitness  but  rather  their 
psychical  fitness,  and  found  them  wanting.  He 
discovered  that  they  did  not  possess  the  three  "unit 
characters"  peculiar  to  Israel,  namely:  sympathy, 
modesty  and  philanthropy.  He  therefore  thought  it 
eugenically  inadvisable  to  allow  their  mating  with  a 
spiritually  better-developed  stock.44  Rabbi  Levi 
enumerates  nine  undesirable  psychical  qualities 
which  ought  to  be  eliminated  from  amongst  the 
Jewish  race.45 

VIII.  Eugenics  and  Religion 

The  Jew  took  his  spiritual  mission  as  representing 
a  "kingdom  of  priests  and  a  holy  kingdom"  quite 
seriously,  and  used  all  possible  eugenic  means  to 
preserve  those  rare  emotional  and  spiritual  qualities 
developed  during  centuries  of  slow  progress  and 
unfolding.  Intuitively  he  felt  the  truth,  so  well 
expressed  by  a  modern  student  of  eugenics,  that 
"Religion  would  be  a  more  effective  thing,  if  every- 
body had  a  healthy  emotional  nature ;  but  it  can  do 
nothing  with  natures  that  have  not  the  elements  of 
love,  loyalty  and  devotion."46  The  Rabbis  would 
say:   Religion   can   do   nothing  with   natures  that 


"Yebamoth  79a. 

"Nedarim  20b. 

"Heredity  in  Relation  to  Eugenics,  p.  255. 


16  Jewish  Eugenics 

have  not  the  elements  of  sympathy,  modesty  and 
philanthropy.  Hence  they  urged  that  a  man  should 
be  willing  to  offer  all  his  possessions  for  the 
opportunity  of  marrying  a  member  of  a  psychically 
well-developed  family.47 

The  marriage  between  the  offspring  of  inferior 
stock  and  that  of  superior  stock,  such  as  the 
marriage  between  a  scholar  and  the  daughter  of  an 
am-haarez,  or  between  an  am-haarez  and  the 
daughter  of  a  scholar,  was  considered  extremely 
undesirable,  and  was  condemned  very  strongly.48 
Moreover,  no  Rabbi  or  Talmid  Chacham  was  allowed 
to  take  part  in  the  celebration  of  such  a  non-eugenic 
union.49 

An  historical  case  is  cited  by  Rabbi  Eliezer  to 
prove  that  one  should  always  select  his  soul-mate 
from  amongst  the  spiritually  better-developed 
families.  Moses  married  a  daughter  of  Jethro,  a 
heathen  priest,  and  the  result  was  that  one  of  his 
grandsons,  Jonathan,  became  an  idolatrous  priest. 
Aaron,  on  the  other  hand,  married  the  daughter  of 
Abinadab,  and  history  records  the  name  of  his 
grandson  Phinehas  as  the  hero  who  defended  the 
honor  and  purity  of  Israel.50 

Parents  living  normal  and  righteous  lives  are  not 
only  a  blessing  to  themselves,  but  also  to  their  chil- 
dren and  children's  children,  until  the  end  of  all 
generations;    while    parents    living    abnormal    and 


*7Pesachim  49b. 

48Kiddushin  49b ;  cf .  also  Pesachim  49b. 

*9Pesachim  49b. 

8°B.  B.  109b. 


Jewish  Eugenics  17 

immoral  lives  bring  ruin  and  calamity  not  only  on 
themselves,  but  also  on  their  children  and  children's 
children,  to  the  end  of  all  generations.51 

IX.    Heredity 

A  parallel  to  the  "rough  eugenic  ideal"  of 
marrying  "health,  wealth  and  wisdom"52  is  found  in 
the  words  of  Rabbi  Akiba,  who  claims  that  "a 
father  bequeaths  to  his  child  beauty,  health,  wealth, 
wisdom  and  longevity."58  Similarly,  ugliness, 
sickness,  poverty,  stupidity  and  the  tendency  to 
premature  death,  are  transmitted  from  father  to 
offspring.54  Hence  we  are  told  that  when  Moses  desired 
to  know  why  some  of  the  righteous  suffer  in  health 
and  material  prosperity,  while  others  prosper  and 
reap  success;  and  again,  why  some  of  the  wicked 
suffer,  while  others  enjoy  success  and  material 
well-being;  God  explained  that  the  righteous  and 
wicked  who  thrive  and  flourish,  are  usually  the 
descendants  of  righteous  parents,  while  those  who 
suffer  and  fail  materially  are  the  descendants  of 
wicked  parents.55 

X.   Priceless  Heritage 

Thus  the  Rabbis  recognized  the  fact  that  both 
physical  and  psychical  qualities  were  inherited,  and 
endeavored  by  direct  precept  and  law,  as  well  as  by 


61Yoma  87a. 

62Heredity  in  Relation  to  Eugenics,  p.  8. 

"Eduyoth  2,  9. 

"Yer.  Kiddushin  1,  7. 

86Berachoth  7a. 


18  Jewish  Eugenics 

indirect  advice  and  admonition,  to  preserve  and 
improve  the  inborn,  wholesome  qualities  of  the 
Jewish  race.  It  is  true  that  they  were  willing  to 
concede  that  "a  pure-bred  individual  may  be  pro- 
duced by  a  hybrid  mated  with  a  pure  bred,"  for 
they  found  examples  of  that  nature  in  Ruth  the 
Moabitess,  Naamah  the  Ammonitess,58  Hezekiah 
and  Mordecai.57  As  a  general  eugenic  rule,  how- 
ever, they  maintained  that  one  cannot  produce  "a 
clean  thing  out  of  an  unclean,"  and  discouraged  any 
kind  of  intermarriage  even  with  proselytes.58  Their 
ideal  was  a  race  healthy  in  body  and  in  spirit,  pure 
and  undefiled,  devoid  of  any  admixture  of  inferior 
human  protoplasm.69 

Such  an  ideal,  though  apparently  narrow  and 
chauvinistic,  has  its  eugenic  value,  as  the  following 
suggestive  quotation  from  a  well-known  eugenist 
clearly  indicates.  "Families  in  which  good  and  noble 
qualities  of  mind  and  body  have  become  hereditary, 
form  a  natural  aristocracy ;  and  if  such  families  take 
pride  in  recording  their  pedigrees,  marry  among 
themselves,  and  establish  a  predominant  fertility, 
they  can  assure  success  and  position  to  the  majority 
of  their  descendants  in  any  political  future.  They 
can  become  the  guardians  and  trustees  of  a  sound 
inborn  heritage,  which,  incorruptible  and  undefiled, 
they  can  preserve  in  purity  and  vigor  throughout 
whatever  period  of  ignorance  and  decay  may  be  in 


"Yebamoth  63a. 

"Bamidbar  Rabbah,  Chukath  ch.  19. 
"Pesachim  112b,  Kiddushin  70b. 
"Yer.  Kilayim  ch.  1. 


Jewish  Eugenics  19 

store  for  the  nation  at  large.  Neglect  to  hand  on 
undimmed  the  priceless  germinal  qualities  which 
such  families  possess,  can  be  regarded  only  as  a 
betrayal  of  a  sacred  trust."90 


60See  Social  Direction  of  Human  Evolution,  p.  238. 


The  Defective  in  Jewish 
Law  and  Literature 

Rabbi  Joel  Blau 


CONTENTS 


Introduction 1 

General  Considerations 3 

Legal  Status 9 

(a)  Chazakah 9 

(b)  Zechiyah 10 

(c)  Inheritance       10 

(d)  Sales       .12 

(e)  Honor 13 

(f)  General  Legal  Standing 13 

(g)  Status  of  the  Blind 14 

(h)  Marriage  and  Divorce 14 

Religious  Status 17 

The  Aggadah 20 


THE  DEFECTIVE  IN  JEWISH  LAW 
AND  LITERATURE 


INTRODUCTION 

There  are  two  typical  attitudes  toward  the 
phenomena  of  existence.  One  may  simply  take  these 
phenomena  for  granted,  unquestioningly,  uncom- 
plainingly. Whatever  their  cause  and  origin,  they  are 
here  and  must  be  dealt  with  somehow.  They  must  be 
adjusted  to  men  and  men  must  be  adjusted  to  them, 
according  to  the  demands  and  limitations  of  the 
individual  and  of  society.  Or  again,  one  may  refuse 
to  take  them  for  granted.  One  may  go  behind  these 
phenomena  and  inquire  into  their  cause.  To  him  who 
adopts  the  latter  attitude,  practical  means  of  adjust- 
ment are  not  satisfactory,  his  concern  being  to  find 
those  higher,  ideal  adjustments  whereby  life  as  a 
whole,  with  its  light  and  shadow,  may  be  shown  to 
conform  to  the  laws  of  mind  and  morals,  of  reason- 
ableness and  righteousness. 

The  difference  between  these  two  attitudes  is 
particularly  apparent  in  the  case  of  such  phenomena 
as  introduce  jarring  discord  into  human  life.    Facing 

23 


24      The  Defective  in  Jewish  Law  and  Literature 

such  discord,  the  problem  of  the  human  mind  is :  How 
is  it  to  be  brought  into  harmony  with  God's  creative 
plan?  with  God's  attributes  of  justice  and  mercy? 
Now,  one  may  simply  ignore  this  problem,  saying  that 
this  is  one  of  the  "hidden  things  that  belong  to  the 
Eternal,"  and  then  proceed  to  deal  with  the  "revealed 
things  that  belong  to  us."  Causes  are  hidden,  but 
effects  are  revealed;  and  one  may  be  content  to  deal 
with  the  human  effects  rather  than  with  the  divine 
causes  of  existing  ills.  Or  again,  one  may  boldly 
venture  into  the  region  of  causality  and,  troubled  by 
the  wailing  sounds  and  festering  sights  of  human 
suffering,  one  may  ask  the  age-long  question  of  a  Job 
or  a  Jeremiah,  How  can  God  afflict  the  sons  of  men  so 
grievously  ? 

In  a  word,  the  one  attitude  deals  with  a  scheme  of 
human  government,  the  other,  with  a  scheme  of  divine 
government. 

These  attitudes,  as  here  set  forth,  are  represented 
in  Jewish  Literature  by  the  Halacha  and  the  Aggadah, 
respectively.  In  this  broad  view,  of  course,  the  terms 
Halacha  and  Aggadah  are  not  to  be  taken  as  referring 
merely  to  the  Talmud  and  Midrashim  but  also  to  the 
Bible,  for  the  Bible,  too,  has  its  Halachistic,  or 
legalistic  contents,  as  well  as  its  Aggadistic,  or  non- 
legalistic  portions.  Whether  in  the  Bible  or  in  the 
rabbinic  interpretations,  this  characteristic  distinction 
between  Halacha  and  Aggadah  can  be  traced  through- 
out. The  Halacha  does  not  concern  itself  with  the 
causes  of  phenomena,  only  with  their  effects.  It  does 
not  seek  for  an  ideal  world-view;  it  views  the  world 
as  it  is  and  deals  with  it  in  a  practical  way.     The 


The  Defective  in  Jewish  Law  and  Literature     25 

Aggadah,  on  the  contrary,  searches  for  the  causes  of 
things — causes  that  lie  concealed  in  the  lap  of  God — 
whose  workings,  though  seemingly  evil,  are  yet  per- 
ceived to  accord  with  His  eternal  goodness.  Since 
now  the  distressing  phenomenon  presented  by  the 
existence  of  mentally  and  physically  defective  men 
and  women  is  one  of  the  discordant  elements  of  human 
life,  we  should  expect  to  find  with  regard  to  it  a 
marked  difference  between  the  attitude  of  the  Halacha 
and  that  of  the  Aggadah.  The  Halacha  accepts  the 
phenomenon  of  Subnormality  and  tries  to  bring  it  into 
right  relations  with  man;  the  Aggadah  inquires  into 
the  why  and  wherefore  of  Subnormality  and  en- 
deavors to  bring  it  into  right  relations  with  God. 

General  Considerations 

The  Halacha  deals  chiefly  with  the  following  types 
of  Subnormality: 

1.  Cheresh — deaf-mute  or  deaf ; 

2.  litem — mute ; 

3.  Shoteh — feeble-minded,     monomaniac,     or 

insane ; 

4.  Nichpeh — epileptic ; 

5.  Suma — blind ; 

6.  Tumtum  ve-Androgunos — Neuter  and  Her- 

maphrodite ; 

7.  Saris  ve-Aylonith — the  sterile  in  both  male 

and  female. 
It  is  to  be  noted  that  Deafmutism  and  Insanity  are 
most  frequently  met  with  in  the  Halacha,  much  more 
frequently  than  all  other  types  of  subnormality.    We 


26     The  Defective  in  Jewish  Law  and  Literature 

are  nevertheless  not  justified  in  inferring  from  this 
circumstance  that  these  two  afflictions  were  the  most 
prevalent  ones  among  Jews ;  rather  is  the  explanation 
to  be  found  in  the  fact  that  these  are  the  farthest 
departures  from  the  normal  state,  and  hence  called  for 
numerous  special  measures. 

Further  be  it  noted  that  the  Talmud  as  well  as  the 
Codes  always  mention  the  deafmute  and  the  insane 
together  with  the  minor  as  belonging  to  the  selfsame 
class  of  the  legally  incompetent  and  mentally  irrespon- 
sible. Deafmutism  according  to  the  Talmud  consti- 
tutes a  mental  defect  no  less  than  a  physical  affliction. 
The  rabbinic  dictum  is:  "Cheresh  lav  bar  deah  hu"1 
But  the  disqualifying  element  in  deafmutism  is  rather 
deafness  than  dumbness.  Maimonides,  in  his  Com- 
mentary on  Terumoth,  declares  that  the  cause  of 
dumbness  lies  in  congenital  deafness.2  Hence  the 
tendency  in  the  Codes — specifically  in  the  Yad 
Hachazakah  and  the  Shulchan  Aruch — is,  on  the 
whole,  to  include  the  deaf  who  speak  with  the  deaf 
and  dumb  in  the  same  legal  provisions,  though  it  is 
conceded  that  the  former,  unlike  the  latter,  may  be  of 
sound  minds.3  There  is,  however,  scarcely  any  doubt 
about  the  mental  competency  of  the  Mem — the  dumb 
who  can  hear — though,  by  reason  of  his  affliction,  he 
is  to  some  extent  legally  disqualified;  for  in  the  case 
of  the  hearing  mute  the  ear  is   an  ingress  to  the 


iChag.  2b ;  Git.  23a. 

2Terumoth  I,  2.  The  statement,  in  the  same  passage,  that 
the  "Mem"  was  included  by  the  Rabbis  in  the  definition  of 
"cheresh"  is  unintelligible  and  does  not  tally  with  the  known 
Rabbinic  pronouncements  on  the  subject. 

*Maim.  Yad,  Eduth  IX,  11. 


The  Defective  in  Jewish  Law  and  Literature     27 

understanding.  In  the  Talmud,4  the  verse :  "That  they 
may  hear  and  that  they  may  learn"5  is  applied  also  to 
the  hearing  mute,  who  can  learn  because  they  can  hear ; 
and  in  corroboration  of  this,  a  touching  story  is  told  of 
two  mutes  who  listened  diligently  to  the  teachings  of 
R.  Yehudah  Ha-Nassi,  their  heads  nodding  and  their 
lips  moving  with  the  vain  effort  to  speak.  Rabbi  took 
pity  on  them  and  prayed  for  them,  whereupon  they 
obtained  the  power  of  speech  and  were  found  to  be 
well-versed  in  all  the  disciplines  of  the  Law. 

As  we  follow  the  evolution  of  the  Talmudical  law 
concerning  the  divers  classes  of  mutes  through  the 
various  codes,  the  matter  becomes  more  and  more 
involved;  but  the  impression  gained  throughout  is, 
that  the  original  law  is  gradually  applied  with  increas- 
ing rigor  even  to  such  mutes  as  cannot  be  classed 
among  the  mentally  incompetent.  Originally,  the  in- 
tention of  the  Rabbis  seems  to  have  been  to  disqualify 
the  hearing-mute  and  the  speaking-deaf  solely  on 
technical  grounds  in  cases  where  the  faculties  of 
speech  and  audition  are  indispensable  requirements. 
For  instance,  the  deaf  though  speaking,  and  the  mute 
though  hearing,  cannot  serve  as  witnesses,  since  they 
cannot  comply  with  the  requirements  of  "hearing"  and 
"telling"  adumbrated  in  Lev.  V,  l.8  But  in  other 
respects,  where  the  question  of  mental  soundness  is  not 
at  issue,  there  was  no  intention  to  disqualify  these  two 
classes  of  mutes.    In  fact,  the  Mishnah7  lays  down  the 


*Chag.  8a. 
BDeut.  xxxi,  12. 
«Git.  71a. 
7Terumoth  I,  2. 


28      The  Defective  in  Jewish  Law  and  Literature 

principle  that  wherever  the  word  "Cheresh"  occurs, 
only  the  deaf-mute  are  meant  thereby;  and  the 
Gemarah,8  in  quoting  this  Mishnaic  principle,  cites  in 
support  thereof,  a  Baraitha  which  expressly  declares 
that  both  the  speaking-deaf  and  the  hearing-mute  are 
to  be  dealt  with  as  mentally  competent,  though  this 
same  Baraitha,  harking  back  to  the  Psalm- verse :  "And 
I  am  like  a  "Cheresh"  that  heareth  not  and  like  an 
"Illem"  that  openeth  not  his  mouth,"8  holds  that  the 
term  Cheresh  refers  both  to  deafmute  and  speaking- 
deaf.  It  is  plain,  therefore,  that  while  as  a  matter  of 
terminology  the  speaking-deaf  are  classed  with  deaf- 
mute,  as  a  matter  of  law  they  are  classed  with  the 
hearing-mute.  Nevertheless,  this  principle  is  not 
sustained  in  the  Codes.  For  instance,  in  the  matter  of 
the  validity  of  sales  negotiated  by  the  various  kinds  of 
mutes,  R.  Jacob  b.  Asher  in  his  Tur,10  basing  himself 
probably  on  the  Mishnah  in  Gittin  VII,  l,11  classes  the 
hearing-mute  with  the  deafmute,  and  the  speaking- 
deaf  with  the  normal;  while  Maimonides12  and  R.  J. 
Caro13  class,  conversely,  the  speaking-deaf  with  the 
deaf-mute  and  the  hearing-mute  with  the  normal,  both 
thus  reversing  the  Mishnaic  definition  of  Cheresh. 
Indeed,  one  is  led  to  conclude,  that  Maimonides  con- 


8Chag.  2b. 

®Ps.  xxxviii    14. 

10Choshen  Mishpat  Chap.  235. 

11Wrongly,  I  believe,  for  the  discrimination  shown  there 
against  the  mute  refers  only  to  "nishtatek"  one  who  became 
dumb  through  sudden  illness,  in  which  case  the  question  of 
sanity  might  be  mooted,  but  not  to  "illem,"  who  is  considered 
a  mentally  sane  being. 

"Maim.   Yad,  Mechirah  XXIX,  13. 

13Chosh.  Mishp.  Chap.  235. 


The  Defective  in  Jewish  Law  and  Literature     29 

sidered  the  deduction  from  the  above  Psalm-verse 
conclusive,  thus  raising  mere  terminology  to  the  im- 
portance of  law.14  The  net  result  of  all  this  is,  that 
the  attitude  of  the  law  becomes  more  rigorous  towards 
all  classes  of  the  mute  and  the  deaf,  their  sanity  being 
more  or  less  challenged. 

But  of  course,  the  mentality  of  the  deaf  or  mute, 
even  of  the  deafmute,  is  not  placed  by  the  Rabbis  on 
the  same  low  level  as  that  of  the  insane.  In  many 
ways  the  deafmute  were  regarded  legally  competent. 
The  Rabbis,  then,  recognised  degrees  of  mental  in- 
capacity. However,  as  to  the  mental  alienation 
proper,  they  made  no  rigorous  distinction  between  the 
feeble-minded  and  the  insane.  Maimonides  has  a 
distinct  reference  to  monomania  in  a  ruling  to  the 
effect  that  the  monomaniac  is  incompetent  even  in 
matters  concerning  which  he  is  rational.15  We  do  how- 
ever find  that  the  Rabbis  attempted  to  define  mental 
alienation  by  distinct  criteria.  These  Rabbinic  criteria 
are  as  follows:16  "He  who  takes  a  solitary  stroll  by 
night  (exposing  himself  to  ghosts)  ;  he  who  spends  the 
night  in  the  cemetery;  he  who  wildly  tears  his  gar- 
ments ;  or  he  who  destroys  everything  given  him."  No 
trouble  need  be  taken  to  compare  these  criteria  with 


14Cf.  his  Commentary  on  Terumoth  I,  2 — where  he  says: 
"In  our  language,  Cheresh  means  one  who  does  not  hear," 
which  suggests  that  he  was  influenced  by  considerations  of 
language,  of  terminology  and  definition.  Note,  however,  Yad, 
Ishuth  II,  26,  where  Maimonides  uses  the  term  "Mem"  for 
the  deafmute;  and  where,  moreover,  he  says  that  the 
speaking-deaf  and  the  hearing-mute  are  to  be  regarded  as 
normal  human  beings. 

16Maim.  Yad,  Mechirah  IX,  9. 

"Chag.  3b. 


30      The  Defective  in  Jewish  Law  and  Literature 

the  strict  medical  tests  of  our  own  time ;  nor  need  the 
rabbinic  test  of  insanity  be  taken  too  literally,  the 
Rabbis  having  had  in  mind  not  so  much  specific  criteria 
as  types  of  action  evidencing  eccentricity  of  some 
sort.17  The  underlying  principle,  then,  is  eccentricity, 
which  fully  accords  with  the  modern  idea  of  mental 
aberration. 

Epileptics  are  characterised  as:  "Ittim  shafui,  ittim 
shoteh."  They  are  classed  with  the  insane  during  the 
fit ;  with  the  normal,  during  their  lucid  intervals.18 

Most  tersely  is  the  incompetency  of  these  defectives, 
both  deafmute  and  insane,  expressed  by  the  Mishnah 
in  the  following  statement:  "Yesh  lahem  ma'asseh 
ve-en  lahem  machashavah" — they  are  capable  of 
action  but  not  of  thought.19  In  the  Gemarah,  however, 
not  even  this  concession  is  made  to  them,  R.  Amai 
saying:20  "Rov  maassehem  mekulkalim" — "their  ac- 
tions are  for  the  most  part  inefficient." 

Leaving  out  the  blind,  as  requiring  little  comment, 
let  these  general  considerations  be  concluded  with  a 
word  about  the  sex-freaks.  The  rabbis  regarded  both 
Tumtum  and  Androgunos,  but  especially  the  latter,  as 
"Biryah  bifene  'atzmah"  as  a  distinct  creature.31 
Tumtum  is  a  kind  of  neuter  in  whom  sex  has  not 
declared  itself,  but  may  at  any  time  do  so  either  in  the 


"V.  Kesef  Mishneh  on  Yad,  Eduth  IX,  9:  "Ledugma 
naktinhu." 

18Rosh-Hash.  28a,  where  the  term  "chalim"  is  used  for 
"shafui" — lucid,  sane;  Maim.  Yad,  Mechirah  XXIX,  5. 

"Machshirin  III,  8;  VI,  1;  Taharoth  VIII,  6. 

2<>Chulin  26a. 

"Yevamoth  83a;  99b;  Bikkurim  IV,  5. 


The  Defective  in  Jewish  Law  and  Literature      31 

direction  of  masculinity  or  femininity;  while  Andro- 
gunos,  or  hermaphrodite,  is  a  bisexual  person, 
possessing  for  ever  the  characteristics  of  both  male 
and  female.21  The  Rabbis,  commenting  on  the  verse : 
"male  and  female  created  he  them,"  maintain  that  the 
first  human  creature  was  an  Androgunos.2*  This  is 
of  some  interest  in  view  of  the  problem  in  biological 
evolution,  whether  the  hermaphrodite  or  the  dioecious 
state  is  the  primitive  one.24  Finally,  the  sterile  of  both 
sexes  are  recognised  by  the  absence  of  signs  of  puberty 
and,  in  addition,  by  a  masculine  voice  in  females  and 
feminine  voice  in  males.25 

And  now  we  may  proceed  to  set  forth  in  detail  the 
status  of  the  defective,  both  legal  and  religious.  By 
legal  status  is  meant  their  standing  in  secular  matters, 
including  marriage  and  divorce;  by  religious  status, 
the  extent  of  their  participation  in  the  religious  life  of 
the  Jew. 

Legal  Status 

(a)  Chazakah 

Chazakah  is  the  right  of  ownership  by  virtue  of 
undisputed  tenure  for  a  definite  length  of  time.    The 

"Yevamoth  83b;  Maim.  Yad,  Ishuth  II,  24-25. 

23A  variant  of  this  view  is  that  Adam  was  a  "du-partzufin" 
a  kind  of  twin-creature,  male  and  female  grown  together 
back  to  back,  which  was  afterwards  separated  by  the  well- 
known  operation;  but  the  authorship  of  these  two  views  is 
confused  in  the  respective  passages.  V.  Bereshith  R.  VIII; 
Vayikra  R.  XIV;  Eruvin  18a;  Berachoth  61a. 

24Balfour,  Comp.  Embryol.    Introd.  p.  11. 

"Yevamoth  80b ;  Maim.  Yad,  Ishuth  II,  6. 


32      The  Defective  in  Jewish  Law  and  Literature 

deafmute  and  the  insane  are  not  allowed  such  pre- 
sumption of  ownership  by  actual  possession.28 

(b)  Zechiyah — Gifts 

The  act  of  the  acceptance  of  a  gift  constitutes  a 
legal  title  thereto.  This  is  called  Zechiyah.  In  this 
sense,  a  man  may  also  act  as  a  proxy  and  receive 
property  for  others,  the  legal  title  thereto  being  estab- 
lished in  their  favor  the  moment  the  property  is  trans- 
ferred to  him.  Here  a  distinction  is  made  between  the 
insane  and  the  deafmute.  The  insane  can  neither  make 
nor  receive  gifts,  nor  yet  can  they  accept  property  for 
others;  whereas  the  deafmute  can  accept  gifts  for 
themselves,  though  they  cannot  make  gifts  nor  receive 
them  for  others.  A  normal  person,  however,  may 
receive  gifts  for  insane.27 

(c)  Inheritance 

In  seeming  contradiction  to  the  laws  of  Zechiyah, 
are  the  laws  of  inheritance.  Both  insane  and  deafmute 
may  make  and  receive  bequests.  For  the  principle 
here  involved  is  entirely  different  from  that  under- 
lying transfer  of  property.  The  right  of  inheritance 
does  not  involve  a  conscious  transfer  of  property 
requiring  legally  competent  agents;  it  is  an  inherent 
right,28  working  quite  automatically;  an  inheritance, 
according  to  rabbinic  terminology,  "falls"  to  the  heir. 
Hence  the  question  of  sanity  is  beside  the  point.    The 


26Maim.  Yad,  To'en  XIII,  2;  Chosh.  Mishp.  149,  18— based 
on  Mishnah  B.  Bathra  III,  3. 

27Maim.  Yad,  Zechiyah  IV,  6—7;  Chosh.  Mishp.  243,  14-16, 
based  on  Gittin  64b.  See  also  Yad,  Mechirah  XXIX  1-4. 

28Mishnah  B.  Bathra  126a;  Maim.  Yad.,  Nachaloth  VI,  1. 


The  Defective  in  Jewish  Law  and  Literature      33 

only  provision  of  the  law  is  that  in  the  case  of  an 
insane  or  deafmute  heir,  the  court  is  to  appoint  a 
trustee  or  guardian  to  manage  the  estate.29  All  this, 
however,  applies  only  to  natural  heirs,  but  not  to  the 
heirship  of  husbands,  if  either  party  to  the  marriage 
is  deafmute.  In  such  a  case,  if  the  wife  is  a  deafmute, 
the  husband  cannot  inherit  her  property,  though  he  be 
normal ;  but  if  the  wife  is  normal  and  the  husband  is  a 
deafmute,  he  can  inherit  her  property.80  The  reason 
for  this  discrimination  lies  in  the  fact  that  the  right  of 
the  husband  to  inherit  his  wife's  property  is  not  an 
inherent  right  as  in  the  case  of  blood-relations.  The 
latter  inherit  by  virtue  of  Pentateuchal  law,  while 
husbands  are  entitled  to  the  estate  of  their  wives  only 
by  virtue  of  a  Rabbinic  ordinance.31  The  heirship  of  a 
husband,  then,  is  in  the  nature  of  a  deed  implied  in  the 
marriage  act.32  Hence,  in  the  case  of  deafmutes,  there 
applies  to  the  heirship  of  husbands  not  the  law  of 
inheritance  but  the  law  of  Zechiya.  Therefore,  if  the 
wife  is  deafmute,  the  husband  cannot  inherit  her 
property,  though  he  be  normal,  since  the  deafmute 
cannot  effect  a  transfer  of  property ;  but  if  the  wife  is 
normal,  he  can  inherit  her  estate,  though  he  be  deaf- 
mute,  since  she,  as  responsible  agent,  can  transfer  her 
property ;  and  he  as  deafmute  can,  in  keeping  with  the 


2»Kethuboth  48a;  Maim.  Yad,  Nachaloth  X,  5  and  7;  ibid., 
Mechirah  XXIX,  3;  Chosh.  Mishp.  290,  1-27. 

aoMaim.  Yad,  Ishuth  XXII,  4;  ibid.,  Nachaloth  I,  9. 

8aKethuboth  84a;  Maim.  Yad,  Nachaloth  I,  8.  Note  also 
that  the  marriage  of  deafmutes  itself  is  valid  only  by  Rabbinic 
ordinance,  which,  however,  cannot  explain  the  fact  that  the 
deafmute  husband  of  a  normal  wife  is  her  heir. 

32Note  the  familiar  Rabbinic  principles:  "Kol  dimekadesh 
ada'ata  dirabanan  mekadesh." 


34     The  Defective  in  Jewish  Law  and  Literature 

law  of  Zechiyah  above  set  forth,  receive  property. 
On  these  same  grounds,  the  husband  cannot  be  heir  to 
his  wife's  estate,  if  either  party  to  the  marriage  be 
insane,  since  the  insane  can  neither  make  nor  receive 
gifts — apart  from  the  fact  that  the  marriage  of  the 
insane  has  barely  any  standing  in  the  eyes  of  the  law.83 

(d)  Sales 

The  difference  between  the  insane  and  the  deaf- 
mute  is  most  strikingly  shown  in  the  matter  of  the 
validity  of  sales.  Sales  or  purchases  by  the  insane, 
whether  in  chattel  or  real  estate,  are  invalid ;  while  the 
commercial  transactions  of  the  deafmute  and  the 
speaking-deaf  are  valid  in  respect  to  movable  goods 
but  not  in  real  estate.34  The  deafmute,  we  are  told, 
buy  and  sell  "birefnizah"  by  sign-language.35  They 
should  be,  however,  thoroughly  examined  as  to 
whether  they  understand  the  nature  of  the  deal,38 
which  again  shows,  that  the  rationality  of  the  deaf  and 
deafmute  was  questioned  in  every  way.  Indeed,  this 
provision  of  the  law  is  explained  as  a  merciful  con- 
cession, to  enable  the  deafmute  to  procure  a  liveli- 
hood.37 In  this  connection,  the  case  of  epileptics,  too, 
receives  consideration.    The  point  to  be  ascertained  in 


83Yevamoth  112b,  113a;  Maim.  Yad,  Nachaloth  I,  10. 

s*Gittin  59a,  71a;  Maim.  Yad,  Mechirah  XXIX,  1-2;  Tur 
Chosh.  Mishp.  235,  17  and  corresp.  Shulchan-Aruch. 

36In  the  Mishnah  Gittin  59a,  a  distinction  is  made  between 
"remizah" — gestures  of  the  hand — and  "kefitzah" — movements 
of  the  lips;  and  the  former  is  held  more  reliable  than  the 
latter. 

86Gittin  67b,  71a;  Maim.  Yad,  ibid.,  Examination,  however, 
was  necessary  in  the  case  of  the  "Mem"  too. 

"Gittin  59a;  Maim.  Yad,  Mechirah  XXIX,  1. 


The  Defective  in  Jewish  Law  and  Literature     35 

reference  to  their  transactions  is,  whether  these  took 
place  in  their  lucid  moments  or  during  the  epileptic 
seizure.88 

(e)  Honor 

From  a  human  standpoint  the  question  is  most  in- 
teresting whether  these  defectives  have  any  sense  of 
personal  honor  and  are,  hence,  entitled  to  damages 
for  insult  or  defamation  of  character.  Here  again, 
the  deafmute  are  entitled  to  damages,  while  the  insane 
are  not.89 

(f)  General  Legal  Standing 

The  general  standing  of  these  defectives  before  the 
law,  in  other  respects  than  above  specified,  is  prac- 
tically nil.  Not  being  considered  responsible  agents, 
they  are  not  liable  to  damages  for  assault  upon  others, 
while  others  are  liable  to  such  for  assault  upon  them.40 
Neither  their  claims  on  others,  nor  the  claims  of  others 
on  them,  are  heard ;  they  are  not  sworn  nor  is  an  oath 
administered  to  others  on  their  account.41  Thus,  they 
are  practically  without  redress  in  money  matters.  Nor 
are  they  accepted  as  witnesses;  be  it  noted,  however, 
that  in  the  case  of  the  deafmute,  this  is  more  on 
account  of  technical  disability  than  of  mental  incom- 
petency; hence,  even  the  "Mem"  who  is  otherwise 
considered  mentally  sound,  is  disqualified  as  a  witness, 
since  he  cannot  give  testimony  by  word  of  mouth,  as 


3*Rosh-Hash.  28a;  Maim.  Yad,  ibid.,  5. 
39B.  Kama  86b;  Maim.  Yad,  Chovel  III,  4;  Chosh.  Mishp. 
300,  37. 
*«B.  Kama  87a;  Maim.  Yad,  ibid,  IV,  20. 
"Shevuoth  38b;  Maim.  Yad,  To'en  V,  9  and  12. 


36      The  Defective  in  Jewish  Law  and  Literature 

has  already  been  set  forth  above.42  Nor  yet  can  they 
act  as  agents  for  others;  but  if  they  so  act,  the  risk 
belongs  not  to  him  who  employs  them  as  intermediaries 
but  to  him  who  accepts  them  as  such  and  entrusts  aught 
to  them.48 

(g)  Status  of  the  Blind 

In  contradistinction  to  these  defectives,  the  Blind 
are  given  full  legal  rights,  except  that  they  cannot, 
on  obvious  grounds,  serve  as  witnesses  or  as  judges; 
but  a  one-eyed  man  may  function  as  witness  though 
not  as  judge.44  Moreover,  the  blind  cannot  act  as 
bringers  of  a  Get  from  foreign  parts,  since  they 
cannot  comply  with  the  technical  requirement  of  de- 
claring :  "Befanay  nichtav" — It  was  written  and  signed 
"before"  me.48 

(h)  Marriage  and  Divorce 

The  principle  underlying  marriage  and  divorce 
between  deafmutes  or  between  deafmutes  and  normal 
persons  is,  that  such  marriages  are  valid  only  by 
Rabbinical  ordinance  and  not  by  Pentateuchal  law.46 
Hence  the  wife  in  the  case  is  entitled  to  neither  keep 
nor  Kethubah}1    Both  Marriage  and  Divorce,  whether 


"General  Considerations. 

*8B.  Bathra  87b ;  Maim.  Yad,  Sheluchin  II,  2. 

"Niddah  50b;  Maim.  Yad,  Eduth  IX,  12. 

48Gittin  23a,  where  the  general  disqualification  by  the 
Mishnah  is  modified  by  the  Gemara  to  apply  only  to  divorce- 
bills  brought  from  "Chutz-laaretz."  Maim.  Yad,  Gerushin 
VII,  19. 

"Yevamoth  112b;  Maim.  Yad,  Ishuth  IV,  9. 

47Yevamoth  113a;  Maim,  ibid.,  XI,  4.  This  seemingly  cruel 
provision  is  explained  as  facilitating  the  marriage  of  a  deaf- 
mute  woman. 


The  Defective  in  Jewish  Law  and  Literature     37 

she  or  he  be  deafmute,  take  place  by  Remizah — sign- 
language.48  But  if  a  deafmute  man  can  write,  he  must 
give  a  Get.49  Deafmutes,  however,  must  be  examined 
as  to  whether  they  understand  the  nature  of  the  act.50 

The  Rabbis,  however,  have  made  no  provision  for 
the  marriage  of  the  feeble-minded  and  insane.61  "Lo 
tikkenu  lahen  rabbanan  nissuin." 

As  to  the  special  divorce  regulations  applying  to  the 
deafmute  and  the  mentally  defective,  the  following  is 
to  be  noted :  If  a  woman  who  was  normal  at  the  time  of 
her  marriage  becomes  deafmute  afterwards,  the  hus- 
band has  the  alternative  of  either  retaining  or  divorcing 
her;  but  if  a  man  who  was  normal  at  the  time  of  his 
marriage  becomes  deafmute  afterwards,  he  cannot 
divorce  her.62  But  if  a  woman  who  was  sane  at  the 
time  of  her  marriage  becomes  afterwards  irrational, 
the  husband  cannot  divorce  her.  In  strict  legality,  he 
might  divorce  her  as  long  as  she  has  sense  enough  to 
take  care  of  her  Get;  but  the  Rabbis  have  mercifully 
provided  that  he  should  never  put  her  away,  lest  she  be 
at  the  mercy  of  licentious  men.53  He  may,  however, 
marry  another  woman  without  being  guilty  of 
bigamy.54 

The  laws  of  Yibbum  and  Chalitza  operate  in  the 


48Mishna  Yevamoth  112a;  Gittin  59a;  Maim.  Yad,  Gerushin 
88,  17. 

"Gittin  71a. 

°°Ibid. 

61  Yevamoth  112a:  "En  adam  dar  im  nachash  bichefifah 
achath — no  man  would  take  up  his  abode  with  a  serpent." 
Maim.  Yad,  Ishuth  IV,  9. 

"Yevamoth  112b;  Maim.  Yad,  Gerushin  II,  17. 

"Yevamoth  112b,  113b;  Maim,  ibid.,  X,  23. 

"Even-Haezer  119,  6. 


38      The  Defective  in  Jewish  Law  and  Literature 

case  of  these  defectives  in  the  following  manner :  Both 
deafmute  and  insane,  male  or  female,  can  be  parties 
to  a  levirate  marriage,  but  not  to  the  act  of  Chalitza.™ 
Hence  the  curious  situation  arises  that  a  person  who 
cannot  contract  an  ordinary  marriage,  because  of  legal 
incompetency,  can  contract  a  perfectly  valid  levirate 
marriage,  for  the  reason  that  the  validity  of  the 
levirate  marriage  is  rooted  in  the  previous  marriage 
of  the  sane  brother.  From  this  follows  that  the  wife 
of  an  insane  or  feeble-minded  person  is  subject  to 
neither  Chalitza  nor  Yibbum,66  since  her  marriage  has 
no  legal  standing.  The  wife  of  a  deafmute,  however, 
is  regarded  as  being  in  the  same  case  with  all  other 
women,  since  her  marriage  has  some  legal  standing, 
and  thus  she  can  be  a  party  either  to  Yibbum  or  to 
Chalitza.67  How  far  the  levirate  marriage  by  defec- 
tives is  valid,  is  shown  by  the  fact  that  a  deafmute 
cannot,  after  contracting  a  levirate  marriage,  divorce 
the  wife  so  wedded,  since  the  divorce  by  a  deafmute 
man  is  not  potent  enough  to  undo  a  perfectly  valid 
marriage.88  If,  however,  he  is  normal  and  his  levirate 
wife  is  deafmute,  he  can  divorce  her.69 

The  salient  features  of  the  law  regulating  the 
marriage  of  the  sexually  abnormal  are  as  follows :  In 
the  case  of  sterility,  the  marriage  is  valid  if  contracted 
with  the  full  knowledge  of  the  defect;  but  if  con- 
tracted in  ignorance  concerning  the  defect,  the  mar- 


"Yevamoth  112b;  Maim.  Yad,  Yibbum  VI,  3  and  6;  Even- 
Haezer  172,  11  and  12. 

56Yevamoth  96b;  Maim,  ibid.,  8;  Even-Haezer,  ibid.,  16. 
B7Maim.  ibid.,  7.     See  comment  by  Maggid  M. 
88Yevamoth  112b;  Maim,  ibid.,  3. 
69Maim.  ibid.,  6. 


The  Defective  in  Jewish  Law  and  Literature      39 

riage  is  void.60  A  sterile  man  or  woman  is  not  subject 
to  Yibbum  and  Chalitza.91  A  Tumtum  may  marry  and 
be  married,  but  such  a  marriage  is  of  dubious 
validity ;"  while  an  Androgunos  can  wed  but  cannot 
be  wedded.88  Neither  is  an  Androgunos  qualified  for 
Yibbum  and  Chalitza,  while  a  Tumtum  performs  the 
act  of  Chalitza  but  cannot  contract  a  levirate 
marriage.94 

Religious  Status 

The  deafmute  and  the  insane  have  no  place  what- 
soever in  the  religious  life.  They  stand  without  the 
pale  of  Judaism.  "They  are  free  from  the  duties, 
responsibilities  and  penalties"  prescribed  by  our  re- 
ligion.*5 Nor  are  they  granted  the  privileges  of 
religion.  They  cannot  officiate  in  any  religious 
capacity:  "enam  motziin  eth  harabbim  yede  cho- 
votham."**  They  do  not  blow  the  Shofar,87  nor  do 
they  lay  an  Eruv-te chumin.™  A  slight  exception  is 
found  in  the  case  of  Shechita,  which  is  not  to  be 
performed  by  them  ttlechatechila>>  but  which  is  none 
the  less  kosher  if  performed  under  the  supervision  of 


"Kethuboth  100b,  102b;  cf.  ibid  72b  and  Yevamoth  2b; 
Maim.  Yad,  Ishuth  XXIII,  1-2;  Even-Haezer  44,  4. 

"Yevamoth  24a,  79b;  Maim.  Yad,  Yibbum  VI,  1  and  8. 

"Bechoroth  42b;  Yevamoth  72a;  Maim.  Yad,  Ishuth  IV, 
11;  Even-Haezer  44,  5. 

"Yevamoth  81a;  Maim.  Yad,  Issure-Biah  I,  15. 

"Maim.  Yad,  Yibbum,  VI,  2,  4,  8. 

"Rashi  Chag.  3b. 

««Rosh-Hash.  29a. 

"Ibid. 

"Eruvin  31b. 


40      The  Defective  in  Jewish  Law  and  Literature 

competent  persons.  This,  however,  is  but  a  post- 
f actum  concession:  "bedi-avad."** 

The  religious  status  of  the  blind  is  a  matter  of  some 
controversy  in  the  Talmud,  the  opinion  of  R.  Yehudah 
being  oft  quoted  to  the  effect  that  the  blind  are  free 
from  religious  duties;70  but  the  final  decision,  regis- 
tered in  the  Codes,  is  that  the  blind  are  disqualified 
only  to  the  extent  of  their  inability  to  see.  Hence  a 
blind  man  may  officiate  as  Chazan,  but  he  may  not  read 
from  the  scrolls  ;71  because  prayers  may  be  recited  by 
heart,  while  the  Law  must  be  read:  "Devarim 
shebichtav  i  attah  reshai  leomeram  'al  peh"12  He 
must  even  observe  Mitzvath  Tzitzith,  despite  the  com- 
mand, "ye  shall  see  them,"78  because  others  can  see 
the  fringes.7* 

In  connection  with  the  religious  disabilities  of  the 
insane  and  deafmute  it  is  worthy  of  note  that,  accord- 
ing to  one  authority,75  a  father  who  has  begotten  an 
insane  or  deafmute  child  has  thereby  fulfilled  Mitzvath 
Piryah-Verivyah.  One  might  suppose  that  the  bringing 
into  the  world  of  a  religiously  disqualified  child  does 
not  satisfy  the  requirements  of  this  religious  law.  In 
that  well-known  Midrash  which  tells  how  God  con- 
sulted the  angels  as  to  whether  He  should  create  man, 
the   angelic   host   ask  the   Creator:   "What   are   the 


6»Chulin  2a. 

™B.  Kama  87a;  Kiddushin  31a. 

"Megillah  24a;  Maim.  Yad,  Tefillah  VIII,  12;  Orach 
Chayyim  53,   14. 

72Gittin  60b;  Orach  Chayyim,  ibid. 

"Num.  xv,  39. 

T*Shabbath  27b;  Maim.  Yad,  Tzitzith  III,  7;  Orach  Chayyim 
17,  L 

"Even-Haezer  1,  6:  gloss  by  Isserles  in  the  name  of  R. 


The  Defective  in  Jewish  Law  and  Literature     41 

potentialities  of  this  odd  creature  ?"  And  God 
answers,  "Tzadikkim — righteous  men — will  descend 
from  him."78  That  is  to  say,  the  mission  of  humanity 
is  spiritual,  and  it  is  only  in  the  light  of  the  spiritual 
destiny  of  mankind  that  the  perpetuation  of  the  race 
is  exalted  to  a  high  plane.  The  Midrash  even  adds 
slyly  that  God  revealed  to  the  angels  but  half  the 
truth,  for  had  He  revealed  the  other  half,  namely  that 
unrighteous  men  too  would  descend  from  Adam,  the 
Midath  Haddin — the  Attribute  of  Justice — would 
never  have  brooked  the  creation  of  man.  Well,  this  is 
Aggadah.  But  the  Halacha  on  the  one  hand  dis- 
qualifies the  child,  and  on  the  other  hand  declares 
itself  satisfied  with  the  father.  Here  one  may  already 
perceive  the  difference  between  the  attitude  of 
Halachah  and  Aggadah,  of  which  more  will  be  said 
presently. 

Before  passing  on  to  that  phase  of  the  subject,  just 
a  few  words  are  in  place  about  the  disabilities  of 
physically  defective  priests.  These  were  put  to  menial 
work  about  the  Temple,  such  as  cleaning  the  kindling 
wood  from  worms,  for  which  purpose  a  special  cell 
was  set  aside  called  "lishchath  ha'etzim."17  When  we 
read  the  long  list  of  the  physical  disqualifications  in 
Lev.  xxi,  we  are  strangely  impressed  with  the  fact 
that  the  least  departure  from  bodily  perfection  unfitted 
a  man  for  service  at  God's  altar.  The  spiritual  ministry 
of  the  priest  was  hedged  in  by  exacting  physical  re- 
quirements.    No   less   curious   is   the   fact  that  the 


Solomon  b.  Aderet  (end  of  13th  cent). 
™Bereshith  R.  VIII. 
"Midoth  II,  5. 


42      The  Defective  in  Jewish  Law  and  Literature 

Hebrew  language,  though  impoverished  in  many 
important  respects,  has  preserved  in  this  list  as  well 
as  in  both  Tochechoth78  so  many  words  that  describe 
unsightly  malformations  and  loathsome  diseases.  We 
lack  classic  Hebrew  terms  for  many  of  the  beautiful 
sights  and  sounds  of  this  world — for  colors,  flowers, 
trees,  birds — but  we  do  not  seem  to  be  wanting  in 
terms  that  bring  before  us  the  seamy  side  of  life,  that 
echo  the  groans  of  the  sufferers,  that  reflect  the  gloom 
of  darkened  lives.  One  is  reminded  of  those  old- 
fashioned  books  on  theology  that  contained  nine 
chapters  on  hell  and  only  one  chapter  on  heaven. 
Uppermost,  it  seems,  in  the  human  mind  is  the  sinister 
aspect,  the  sitra  achara,  of  existence.  That  aspect  we 
are  apt  to  exaggerate  beyond  all  proportion;  and, 
therefore,  it  becomes  the  business  of  the  spiritually- 
minded  thinker  to  reduce  our  morbid  imaginings  to 
their  true  measure,  to  turn  our  face  toward  the  light, 
to  show  how  in  the  divine  scheme  of  things,  light  and 
shadow  sing  the  same  song  of  everlasting  justice  and 
mercy. 

The  Aggadah 

That  song  was  caught  and  set  to  human  words  by 
the  Aggadah. 

While  the  Halacha  coolheadedly  accepted  conditions, 
and  dealt  in  a  practical  way  with  the  grim  realities  of 
Subnormality,  the  Aggadah  asked  searching  questions 
and  dealt  with  the  dim  idealities  of  Subnormality. 

Now  behind  every  question  that  the  human  intellect 


"Lev.  xxvi,  16;  Deut.  xxviii,  20-22,  27-29,  34,  35. 


The  Defective  in  Jewish  Law  and  Literature     43 

ever  asked  there  was  an  emotional  crisis,  a  shock. 
And  it  behooves  us  to  find  out  the  nature  of  the 
shock  that  led  the  Aggadists  to  inquire  into  the  causes 
of  Subnormality,  always  bearing  in  mind  that  while 
the  Halachah  confines  itself  to  adjusting  the  physical 
order  unto  itself,  the  Aggadah  tries  to  adjust  the 
physical  order  to  a  higher  spiritual  order. 

What,  then,  was  the  nature  of  this  shock?  On  the 
physical  side,  it  is  not  to  be  supposed  that  the  sight 
of  bodily  imperfection  left  the  Rabbis  of  the  Aggadah 
altogether  untouched.  The  Greeks  had  no  monopoly 
in  the  high  regard  for  the  body  beautiful.  The  Jew, 
too,  appreciated  bodily  perfection.  It  would  take  one 
too  far  afield  to  enumerate  all  the  passages  in  Bible  and 
Talmud  that  show  admiration  for  well-favored  men 
and  women.  One  example  shall  suffice.  The  Rabbis 
say  that  God  takes  pride  in  men  of  tall  stature,79  basing 
their  statement  on  the  verse:  "And  I  have  destroyed 
the  Amorites  before  them,  whose  height  was  like  the 
height  of  cedars  and  he  was  strong  as  the  oaks."80 
The  Rabbis  felt  that  this  verse,  though  referring  to 
the  destruction  of  those  remarkable  specimens  of 
stalwart  humanity,  still  reflected  the  divine  pride,  as 
it  were,  in  the  tall  and  vigorous  human  frame. 

Nevertheless,  while  the  Jew  appreciates  physical 
wholeness,  the  Jewish  Genius  is  not  primarily 
esthetical;  it  is  essentially  ethical.  Hence  we  are  not 
to  expect  that  the  shock  which  the  Aggadists 
experienced  when   facing  the  phenomenon   of   Sub- 


™Bechoroth  45b. 
80Amos  ii,  9. 


44      The  Defective  in  Jewish  Law  and  Literature 

normality  was  an  esthetic  one,  a  rude  jarring  of  their 
esthetic  sensibilities;  nor  that  the  causes  they  sought 
to  learn  were  of  a  physical  nature.  In  conformity  with 
the  constitution  of  the  Jewish  Genius,  the  shock  they 
experienced  was  an  ethical  shock,  a  painful  upheaval 
of  their  moral  being ;  and  the  causes  they  searched  for, 
in  order  to  regain  their  own  spiritual  equilibrium,  were 
accordingly  of  an  ethical  nature.  Facing  Subnormality, 
the  Aggadists  asked:  How  can  such  things  be  in  a 
world  presided  over  by  a  righteous  God? 

In  proof  of  this,  it  is  to  be  noted  that  the  general 
Rabbinic  theory  of  human  suffering  is  that  it  is  caused 
by  moral  turpitude.  "En  yissurim  beli  avon" — no  Sin, 
no  Suffering.81  In  regard  to  Subnormality,  however, 
the  Rabbis  are  still  more  specific,  assigning  certain 
defects  to  certain  definite  immoral  acts.  Lameness, 
mutism,  blindness  and  deafmutism  in  children  are 
ascribed  to  various  kinds  of  incontinence  and  un- 
chastity  practised  by  parents  during  co-habitation." 
A  judge  who  takes  bribe  will  be  stricken  with  blind- 
ness;88 this  view  is  of  course  based  on  the  literal 
interpretation  of  the  verse :  "For  the  gift  blindeth  the 
wise."84  Lastly,  the  Rabbis  tell  us  that  malingerers, 
who  sham  blindness  or  other  defects  in  order  to 
excite  sympathy  and  receive  undeserved  bounty,  will 
yet  be  stricken  before  they  die  with  the  very  affliction 
they  feign.86 


81Shabbath  55a.  See  also  Berachoth  5a:  "im  roeh  addm, 
yissurim  bairn  'alav  yefashpesh  betna'assav;"  and  Gittin  70a: 
Sheloshah  devarim  makchishin  kocho  shel  adam:  pachad, 
derech,  avon." 

82Nedarim  20a. 

ssPeah  8,  9;  cf.  Kethuboth  105a. 

8*Deut.  xvi,  19. 

86Peah,  ibid.,  Kethuboth  68a. 


The  Defective  in  Jewish  Law  and  Literature     45 

It  is  thus  that  the  Rabbis  tried  to  trace  the  moral 
causes  of  Subnormality.  It  is  thus  that  they  en- 
deavored to  fit  the  latter  into  the  divine  world-scheme. 
The  defective  is  more  or  less  guilty  of  sin,  or  at  best 
was  conceived  in  the  sin  of  others.  It  is  perhaps  for 
this  reason,  that  the  Levitical  laws  were  so  scrupulous 
with  regard  to  the  physical  wholesomeness  of  the 
priesthood.  A  seeming  contradiction  to  this  theory  as 
to  the  moral  causes  of  Subnormality  is  to  be  found  in 
Ex.  iv,  11.  In  this  verse  God  answers  Moses*  com- 
plaint about  his  slight  impediment:  "Who  hath  made 
man's  mouth,  or  who  maketh  the  dumb,  or  the  deaf, 
or  the  seeing,  or  the  blind?  Have  not  I  the  Lord?" 
According  to  the  literal  meaning,  this  verse  refers  to 
the  innocent  Moses.  The  philosophy  reflected  in  this 
verse  is  that  God  in  His  inscrutable  wisdom  grants  or 
withholds  the  faculties  of  the  body  regardless  of  the 
merit  of  the  individual.  This,  then,  would  tend  to 
upset  the  Rabbinic  theory.  But  here  again  the  Rabbis 
are  true  to  themselves  and  exhibit  their  consistency  to 
a  striking  degree.  For  this  same  verse,  as  explained 
by  the  Rabbis,  assumes  a  different  meaning,  one  that 
tends  to  support  the  Rabbinic  view  of  subnormality. 
They  say86  that  when  Pharaoh  wanted  to  have  Moses 
put  to  death  for  killing  the  Egyptian,  all  his  wise  men 
became  incapacitated :  some  of  them  went  blind,  some 
dumb,  some  deaf,  and  some  lame.  When  Pharaoh 
issued  the  command  to  seize  Moses,  the  blind  could 
not  see,  the  dumb  could  not  speak,  the  deaf  could  not 
hear,   and   the   lame   could   not   run.     Thus   Moses 


"Shir-Hashirim  R.  VII. 


46      The  Defective  in  Jewish  Law  and  Literature 

escaped.  Now,  say  the  Rabbis,  the  verse  in  question 
refers  to  that  incident.  In  other  words,  it  refers  not 
to  the  innocent  Moses  but  to  the  guilty  Egyptians. 

Facing  the  broken  tabernacle  of  the  body,  the  Rabbis 
recognised  in  the  battered  ruins  the  punishing  hand  of 
God.  Therefore  did  the  Rabbis  prescribe  special  forms 
of  benediction  for  those  who  happen  to  sight  a 
defective  or  a  physical  freak.  If  the  defect  is  con- 
genital, the  beholder  should  say :  "Blessed  art  thou,  etc., 
who  f  ashionest  thy  creatures  in  strange  ways ;"  but  if 
accidental,  he  should  say:  "Blessed  be  the  righteous 
judge."87  Nevertheless  the  Rabbis  readily  acknowl- 
edged that  the  light  of  God  may  shine  forth  brightly 
out  of  some  of  these  broken  shrines.  Mention  was 
already  made  of  the  story  of  the  two  dumb  scholars 
who  absorbed  R.  Jehudah's  discourses.  A  further 
example  in  point  is  the  familiar  figure  of  the  blind 
R.  Shesheth  whose  extraordinary  erudition  is 
emphasized,88  and  whose  acumen  forms  the  subject  of 
many  a  Rabbinical  anecdote.89  Lastly,  the  Rabbis  say 
that  Mephibosheth,  son  of  Saul,  of  whom  the  Bible 
says  that  he  was  lame  on  both  his  legs,80  was  the 
teacher  of  David,  by  whom  he  was  consulted  on  all 
occasions.91 

If  after  what  has  been  said,  further  corroboration 
be  needed  of  the  Aggadistic  attitude  towards  Sub- 
normality,  as  here  set  forth,  another  Rabbinic  story 


87Berachoth  58b. 
88Shevuoth  41b. 
8»Berachoth  58a. 
90II  Sam.  iv,  4. 
91Berachoth  4a. 


The  Defective  in  Jewish  Law  and  Literature     47 

may  be  cited.  This  story  makes  it  plain  that  the 
Rabbis  were  solicitous  about  bringing  the  phenomenon 
of  Subnormality  into  harmony  with  God's  creative 
plan.  The  story  is  that  David  said  to  God:  "How 
manifold  are  thy  works,  O  God,  in  wisdom  hast  thou 
made  them  all.92  All  that  thou  hast  created  in  thy 
world  thou  hast  made  well,  and  wisdom  is  the  best  of 
all ;  but  Madness  which  thou  hast  created — how  can  it 
benefit  the  world  ?"  God  answered,  "To  Madness  dost 
thou  object?  Wait!  thou  wilt  yet  stand  in  need  of  it; 
nay  more,  thou  wilt  miss  it  and  pray  that  I  should  give 
it  unto  thee."  Here  follows  the  account  of  David's 
coming  to  the  court  of  Achish,  King  of  Gath,  from 
whence  he  escapes  by  feigning  insanity.98  In  the 
Rabbinic  version  of  this  Biblical  story,  David  in  his 
extremity  prays  for  the  gift  of  madness,  which  is 
granted  him  for  the  moment.  And  the  story  ends  with 
David's  joyful  exclamation,  "How  desirable  is  Mad- 
ness !  I  will  bless  the  Lord  at  all  times,94  in  times  of 
wisdom  and  in  times  of  madness  !"95 

Insanity  part  of  the  moral  scheme  of  God's 
world-government!96  Truly,  bold  Fancy  could  ven- 
ture no  farther  in  bridging  the  gulf  that  exists  in  the 
human  mind  between  God's  wisdom  and  men's  woes ! 
Our  Rabbis,  in  their  optimism,  did  turn  our  faces 
toward  the  light,  interpreting  the  dark  riddle  of  life  in 


»2Ps.  104,  24. 

93I  Sam.  xxi,  13-16. 

»4ps   44  2 

»»Shocher-Tov  39;  Yalkut  II,  131. 

96I  feel  it  incumbent  upon  me  to  point  out  at  this  juncture 
that  I  have  not  taken  into  account  the  belief  that  insanity  is 
due  to  "possession"  by  evil  spirits,  traces  of  which  belief  may 


48      The  Defective  in  Jewish  Law  and  Literature 

such  a  way  that  men  of  lesser  knowledge  and  lesser 
faith  may  understand  it  and  be  comforted. 

Still  more  powerfully  do  the  notes  of  comfort  ring 
forth  out  of  the  words  of  the  prophets  of  Israel.  We 
need  not  be  surprised  that  the  prophets  included  in 
their  cosmic  vision  the  sad  phenomenon  of  Sub- 
normality.  For  these  men  of  God  dealt  as  none  other 
did  with  the  seamy  side  of  life.  And  though  their  soul 
was  mainly  troubled  by  the  prevalence  of  moral  evil, 
yet,  as  superlative  incarnations  of  the  Jewish  Genius, 
they  did  not  lose  sight  of  bodily  ills  altogether.  Both 
moral  and  physical  defects,  to  their  view,  are  inter- 
laced in  that  whimsical  underweb  which  oft  conceals 
from  our  limited  ken  the  harmony  and  the  beauty  of 
God's  world-pattern.  Hence  it  is  not  at  all  astonishing 
that  in  their  Vision  of  the  End  they  foresaw  the  dis- 
appearance not  only  of  Sin  but  also  of  Subnormality. 
And  though  some  passages  in  which  the  prophets 
speak  of  the  blind  being  made  to  see  and  the  lame  being 
made  straight-limbed  are  open  to  figurative  interpre- 
tation,97 there  is  one  passage  in  Isaiah98  lending  itself 
to  none  other  than  its  primary,  its  literal  construction, 
which  contains  the  soothing  promise:  "Then  the  eyes 
of  the  blind  will  be  opened,  and  the  ears  of  the  deaf 
will  be  unstopped.  Then  will  the  lame  leap  as  an  hart 
and  the  tongue  of  the  dumb  sing !" 

To  sum  up : — If  the  Rabbis  of  the  Aggadah  have  a 


be  found  in  the  Bible,  Rabbinic  Literature,  and  particularly 
in  the  New  Testament;  nevertheless,  I  believe  I  am  not 
mistaken  in  stating  that  I  have,  throughout  my  presentation, 
followed  the  main  stream  of  Jewish  thought. 

•7Isa.  xxix,  18;  xxxii,  4. 

•8Ibid.,  xxxv,  6. 


The  Defective  in  Jewish  Law  and  Literature     49 

philosophy  of  Subnormality  looking  towards  its  cause 
and  origin,  the  Prophets  have  an  Eschatology  of  Sub- 
normality,  looking  towards  its  end  and  final  extinction. 
On  the  day  when  the  crooked  will  be  made  straight 
and  the  desert  bloom  as  a  rose,  both  cause  and  effect 
of  Subnormality  will  be  done  away  with,  both  soul 
and  body  will  be  made  whole.  In  the  meantime,  the 
Rabbis  of  the  Halachah,  being  practical  men,  were 
right  in  dealing  with  a  knotty  human  problem  in  a 
practical  way.  To  be  sure,  the  modern  sociological 
investigator,  searching  for  what  is  today  called  the 
social  treatment  of  the  Defective,  will  find  in  the 
Halachic  treatment  of  these  unfortunates  results  that 
are,  from  his  standpoint,  almost  wholly  negative.  Of 
social  treatment  in  the  modern  sense,  the  barest  traces 
are  to  be  seen  in  the  appointment  by  the  court  of  a 
guardian  or  trustee — more,  however,  as  an  adminis- 
trator of  the  estate  of  deafmute  or  insane  than  as  an 
embodiment  of  society's  wardenship  over  their  person ; 
and,  further,  in  the  fact  that  marriage  between  insane 
or  insane  and  normal  was  discountenanced,  though  not 
actually  prevented.  Society  was  not  ready  in  those 
days  to  mete  out  proper  social  treatment  to  its  sub- 
normal or  abnormal  members,  either  by  way  of  pre- 
vention or  cure.  Men  in  those  days  left  a  great  deal 
to  God;  and  who  can  say,  conscientiously,  that  even 
today  they  do  not  leave  to  Him  much  more  than  He 
expects  them  to  ?  Especially  in  view  of  our  own  social 
shortcomings,  let  us  admit  that,  measured  by  the 
standard  of  those  early  days,  the  Rabbis  of  the 
Halachah  had  recourse  to  such  practical  measures  as 
fitted  into  the  mold  of  their  own  time.    Thus  our  final 


50      The  Defective  in  Jewish  Law  and  Literature 

word  about  the  Defective  in  Jewish  Law  and  Litera- 
ture is,  that  if  the  Aggadists  point  the  way  to  deep 
speculation  and  the  Prophets  to  sublime  inspiration, 
the  Halachists  point  the  way  to  effective  service. 


Capital  Punishment 
Among  the  Jews 

Rev.  D.  De  Sola  Pool,  Ph.  D. 


CONTENTS 


The  Four  Methods  of  Capital  Punishment    .  1 

(a)  Stoning 2 

(b)  Burning       6 

(c)  Beheading 9 

(d)  Strangulation 12 

Jewish  Attitude  towards  Capital  Punishment  15 

Rabbinical  Modifications 21 

Legal  Restrictions 25 

Practise  and  Theory 35 

Post-Talmudic  Development 46 


CAPITAL  PUNISHMENT 


In  the  following  essay,  an  attempt  is  made  at 
tracing  the  history  of  capital  punishment  among  the 
Jews.  From  the  Biblical  period  onwards,  there  took 
place  a  long  and  complex  development  of  the  prin- 
ciples, the  methods  and  the  application  of  capital 
punishment. 

The  story  of  this  development  is  contained  chiefly 
in  the  Old  and  the  New  Testaments,  Josephus,  the 
Rabbinic  writings  and  the  Responsa  of  the  Middle 
Ages.  The  following  study,  which  is  based  on  these 
sources,  attempts  to  make  clear  what  was  the  nature 
of  this  development. 

The  Four  Methods  of  Capital  Punishment 

According  to  a  saying  of  the  Rabbis,  nine  hundred 
and  three  different  methods  of  death  have  been  created 
for  man.1  But  Rabbinic  jurisprudence  recognised 
only  four  legal  methods  of  inflicting  death  as  the 
penalty  for  a  capital  crime,  namely:  stoning,  burning, 
decapitation  and  strangulation.2    One  man,  Yakim  (or 


2Ber.  8a,  with  reference  to  Ps.  lxviii,  61. 
2Mishna  Sanh.  vii,  1. 

53 


54  Capital  Punishment  Among  the  Jews 

Yakom),  a  nephew  of  Jose  ben  Joezer  (2nd  cent. 
B.  C.  E.),  is  said  to  have  killed  himself  by  all  four 
methods  at  once.  He  first  set  up  a  beam  from  which 
he  hung  a  noose.  Then  he  arranged  faggots  at  the 
foot  of  the  gibbet,  surrounded  them  with  stones  and 
set  a  sword  with  its  blade  pointing  upwards  in  the 
stones.  He  then  kindled  the  faggots  and  hanged  him- 
self in  the  noose,  the  flames  burned  away  the  rope  so 
that  his  body  fell  into  the  fire,  and  at  the  same  time  on 
to  the  stones  and  on  the  sword-blade.3 

(a)  Stoning 

In  appraising  the  Jewish  attitude  towards  capital 
punishment  in  general,  it  is  necessary  first  to  examine 
the  history  of  these  four  methods  of  capital  punish- 
ment among  the  Jews.4  The  first  to  engage  our 
attention  is  Stoning  (Sekilah). 

In  Biblical  and  Rabbinic  legislation,  stoning  is  the 
punishment  decreed  for  a  number  of  transgressions, 
such  as  idolatry,  Moloch  worship,  magic,  necromancy, 
false  prophesying,  Sabbath  desecration,  blasphemy  of 
God's  Name,  cursing  of  parent,  and  other  crimes, 
seventeen  in  all,  listed  in  the  Mishna.8 

Stoning  was  apparently  the  usual  method  of  inflict- 
ing the  death  penalty  in  Biblical  times  whenever 
burning    was   not    specifically   called    for.6     It   was 


3Gen.  Rab.  lxv,  22. 

4This  subject  has  been  dealt  with  at  length  by  A.  Buechler, 
Monatsschrift  f.  Geschichte  u.  Wissenschaft  des  Judentums, 
1906,  Vol.  L. 

5Sanh.  vii,  4. 

«Compare  Lev.  xx,  10  with  Deut.  xxii,  24;  and  Num.  xv,  35 
with  Exod.  xxxi,  14f,  and  xxxv,  2;  Matt,  xxv,  37;  Luke 
xiii,  34. 


Capital  Punishment  Among  the  Jews  55 

carried  out  outside  the  camp  or  town  or  at  the  gate,7 
by  the  people  or  mob,  without  any  other  ceremony8 
than  the  casting  of  the  first  stone  by  the  witnesses.9 

In  post-Biblical  times,  we  find  that  according  to 
John  x,  31,  "the  Jews  took  up  stones  again  to  stone" 
Jesus.  According  to  Acts  vii,  57f,  Stephen,  the  proto- 
martyr  of  the  Church,  was  stoned,  but  whether  by  the 
uprising  of  the  mob  or  by  judgment  of  the  court,  is  not 
clear.10  According  to  Luke  xx,  6,  the  chief  priests 
and  the  scribes  and  elders  feared  to  suggest  that  John 
the  Baptist  was  not  a  prophet,  because  if  they  did  so 
"all  the  people  will  stone  us."  In  a  passage  which  is 
admittedly  a  Christian  interpolation  in  Josephus,  we 
are  told  that  the  Sadducean  high  priest  Anan  (62  C.  E.) 
removed  James,  the  brother  of  Jesus,  and  some  others 
by  stoning,  after  a  semblance  of  a  legal  trial.11 

In  the  Rabbinic  literature  also,  there  are  incidental 
references  to  actual  cases  of  stoning,  which  may  seem 
to  imply  that  in  the  earliest  Rabbinic  period  lapidation 
was  carried  out  in  the  simple  manner  described  in  the 
Bible.  In  the  Mishna,12  it  is  stated  that  a  priest  who 
ministered  in  the  Temple  in  a  state  of  ritual  impurity 
was  beaten  on  the  skull  by  the  young  priests,  with 


7Lev.  xxiv,  14,  23;  Num.  xv,  35  f;  Deut.  xvii,  5;  xxi,  19ff; 
xxii,  24;  Acts  vii,  58. 

8Lev.  xxiv,  16;  Num.  xiv,  10;  Deut.  xxi,  21;  xxii,  21;  I  Sam. 
xxx,  6 ;  I  Kings  xii,  18 ;  xxi,  10,  13 ;  II  Chron.  x,  18 ;  xxiv,  21 ; 
Exod.  xvii,  4;  viii,  22;  Josephus,  War  I.  xxvii,  6;  Antiq.  XVI, 
xi,  17;  XVI.  x,  5. 

9Deut.  xvii,  7. 

10Overbeck,  Apostelgeschichte,  114;  J.  Juster,  Les  Juifs  dans 
VEmpire  Romain,  II,  138,  note  2;  Schuerer,  II,  262. 

^Antiq.,  XX,  ix,  1;  Schuerer  (4th  edit.),  I,  581. 

12Sanh.  ix,  6. 


56  Capital  Punishment  Among  the  Jews 

blocks  of  wood.18  In  early  Rabbinic  times,  the  death 
penalty  by  stoning  was  undoubtedly  carried  out.  Rabbi 
Eleazar  ben  Jacob  (1st  cent.  C.  E.)  states  that  as  an 
exemplary  measure,  the  Jewish  court  (Beth  Din)  in 
Grecian  days,  imposed  the  sentence  of  stoning  on  one 
who  rode  on  horseback  on  the  Sabbath.14  Tosefta 
Sanhedrin  ix,  5,  mentions  a  definite  case  of  a  man 
going  out  to  be  stoned.  Tradition  states  further  that 
Ben  Satda,  later  wrongly  identified  with  Jesus15,  was 
stoned.16  The  Beth  Din  in  Jerusalem  is  also  said  to 
have  inflicted  the  death  penalty  by  stoning  for  a  case 
of  apparent  incest  and  for  another  gross  crime.17 
But  whether  any  of  these  cases  of  stoning  was  carried 
out  in  the  Pharisaic  method  of  precipitation  described 
in  the  Mishna  Sanhedrin  vi,  4,  is  not  clear  from  the 
sources.18 

It  may  be  asked  what  basis  there  was  for  the 
Pharisaic  modification  of  lapidation  to  precipitation. 
In  a  war  with  Edom,  captive  Edomites  were  killed  by 
being  precipitated  from  a  rock.19  Two  Jewish  mothers 
who  had  circumcised  their  children  during  the  persecu- 
tions of  Antiochus  Epiphanes  are  said  to  have  been 
killed  by  being  hurled  from  the  wall  of  the  city.20    The 


"Compare  Tosefta  Kelim  i,  6;  Josephus,  War,  I,  xxvii,  6. 

"J.  Chag.  II,  14,  78a;  Sanh.  46a. 

18Tos.  Sabb.  104b;  Chajes  in  Hagoren,  IV,  33-37;  Zucker- 
mandel,  Gesam.  Aufsaetze,  II,  193. 

"Sanh.  67a;  Tos.  Sanh.  x,  11;  J.  Sanh.  VII.  2,  25d  top. 

"Kid.  80a ;  Git.  57a. 

"Buechler  loc.  cit.,  p.  691,  doubts  whether  the  method  of 
precipitation  was  ever  legally  used. 

"II  Chr.  xxv,  12. 

20II  Mace,  vi,  10;  but  Josephus,  Antiq.,  XII.  v,  4  says  that 
they  were  crucified  and  then  strangled  by  having  their  children 
hung  round  their  neck. 


Capital  Punishment  Among  the  Jews  57 

false  witnesses  who  accused  Susanna  were  similarly 
dealt  with.21  The  gospel  according  to  Luke  relates 
that  the  people  of  Nazareth  wished  to  cast  Jesus 
headlong  from  the  brow  of  the  hill  whereon  their  city 
was  built.22  Precipitation  was  therefore  a  well  recog- 
nised modification  of  lapidation,  and  not  a  sheer 
invention  of  the  Rabbis. 

A  similar  modification  was  very  early  introduced  in 
the  treatment  accorded  to  the  scapegoat.  Instead  of 
the  scapegoat  being  sent  forth  into  the  wilderness,  as 
the  Bible  describes,23  it  was  in  practise  precipitated 
from  a  rock.  Similarly,  the  Pharisaic  tradition  early 
substituted  precipitation  for  stoning  in  the  case  of 
human  punishment.  According  to  a  convincing 
emendation  of  a  Talmudic  text  suggested  by  L. 
Ginzberg,24  precipitation  had  taken  the  place  of  lapida- 
tion at  least  as  early  as  the  time  of  R.  Jochanan  ben 
Zaccai,  (fl.  75  C.  E.). 

The  Rabbis  held  lapidation  to  be  the  most  severe  of 
the  four  death  penalties,  and  precipitation  was  regarded 
as  a  humane  modification  of  it.  The  Mishna  states 
that  the  victim  was  thrown  from  twice  a  man's  height, 
i.  e.,  about  1 1  feet.  But  if  you  wish  to  ensure  a  certain 
and  easy  death,  asks  the  Talmud,  why  not  cast  him 
from  a  greater  height?  The  answer  is  given  because 
that  would  lacerate  the  body.25    The  words  "his  blood 


21  Susanna  62,  LXX  text. 

22Luke  iv,  29. 

23Lev.  xvi,  22. 

"Students'  Annual,  1914,  pp.  146,  147.  I  gladly  take  this 
opportunity  of  acknowledging  my  indebtedness  to  Prof. 
Ginzberg  who  read  this  essay  in  manuscript  and  gave  me 
valuable  suggestion  on  many  points. 

25Sanh.  45a  bottom. 


58  Capital  Punishment  Among  the  Jews 

shall  be  on  him"26  were  taken  as  implying  that  he  shall 
be  so  killed  that  the  blood  shall  remain  in  him.  The 
change  in  method  advocated  by  the  Pharisees  therefore 
seems  to  have  had  for  its  purpose  the  desire  to  make 
the  death  more  humane,  certain  and  speedy,  and  to 
preserve  the  body  so  far  as  possible  from  being 
mangled.  The  custom  of  giving  to  the  one  condemned 
a  wine  compounded  with  myrrh  to  dull  the  senses,27 
would  be  another  expression  of  this  desire  to  rob  the 
punishment  of  its  horror  and  pain. 

(b)  Burning 

The  second  death  penalty,  that  of  Burning 
(Serefah),  is  prescribed  by  the  Biblical  law  for  a 
priest's  daughter  who  commits  adultery,  and  for  the 
crime  of  incest  with  mother  and  daughter.28  The  house 
of  the  guilty  may  also  have  been  burnt.29  There  is  no 
reason  to  doubt  that  this  punishment  in  Biblical  times 
involved  the  actual  burning  of  the  living  victim.30 

In  post-Biblical  times,  we  find  that  on  March  13, 
4  B.  C.  E.,  Herod  burnt  alive  Matthias  and  his  com- 
panions who  had  pulled  down  the  golden  eagle  set  up 
over  the  gate  of  the  Temple.31  But  this  was  the  act  of 
a  despotic  monarch  and  not  of  a  court  of  law.  Josephus 
reports  about  himself  that  the  Galilean  mob  regarded 


2«Lev.  xx,  9,  11,  12,  13,  16,  27. 

27Sanh.  43a;  Mark  xv,  23;  Matt,  xxvii,  34;  Prov.  xxxi,  6. 

28Lev.  xxi,  9;  xx,  14;  Cf.  Gen.  xxxviii,  24  (Tamar)  and 
Josh,  vii,  15,  25  (Achan). 

2»Jud.  xii,  14,  15;  Josh,  vii,  15,  24;  Josephus,  War,  II.  xxi, 
3,  7. 

30Josephus,  Antiq.,  IV,  viii,  23,  to  Levit.  xxi,  9.  Compare 
Dan.  iii,  6. 

31Josephus,  Antiq.,  XVII,  vi,  4;  War,  I,  xxxiii,  4. 


Capital  Punishment  Among  the  Jews  59 

him  as  a  traitor,  and  some  cried  out  to  stone  the  traitor 
and  others  to  burn  him.82  This  also  would  have  been 
the  act  of  a  passionate  populace  in  wartime,  and  not  a 
legally  imposed  punishment.  But  there  is  one  well 
attested  instance  in  early  Rabbinic  times  of  an  actual 
burning  by  decree  of  a  court  of  law.  This  was  re- 
ported by  Rabbi  Eleazar  ben  Zadok  (fl.  c.  100  C.  E.), 
who  said  that  as  a  young  child  he  had  seen  the 
adulterous  daughter  of  a  priest  bound  around  with 
vine  branches  and  burnt.83  His  fellow  Rabbis,  repre- 
senting the  Pharisaic  tradition,  declared  that  such  a 
course  of  action  involving  a  literal  burning,  could  have 
been  carried  out  only  by  an  unlearned  court  (Mishna), 
or,  according  to  R.  Joseph,  by  a  Sadducean  court.84 
The  Book  of  Jubilees,  which  is  also  Sadducean  in  its 
Halacha,  prescribes  burning  for  the  marriage  of  a 
Jewess  with  a  non-Jew,  for  adultery  and  incest.85 

But  the  Pharisaic  tradition,  as  is  well  known, 
mitigated  the  severity  of  the  punishment  by  changing 
it  into  strangulation  followed  by  a  slight,  almost 
symbolic  burning  of  the  throat  and  inward  parts.88 
The  reasons  for  the  change  of  method  are  apparently 
the  same  as  in  the  case  of  stoning,  first,  the  desire  to 
rob  the  death  of  its  pain87,  and  secondly,  to  avoid 
marring  the  body. 


**War,  II,  xxi,  3. 

33Mishna  Sanh.  vii,  2;  Tos.  Sanh.  ix,  11;  J.  Sanh.  VII,  24b; 
B.  Sanh.  52b. 

3*Sanh.  52b. 

"Jubilees  xxx,  7;  xx,  4;  xli,  25,  26.  For  the  Pharisaic  view 
of  the  application  of  this  penalty,  see  Mishna  Sanh.  ix,  1. 

36Mishna  Sanh.  vii,  2.  R.  Jehudah  while  upholding  this 
method  suggests  a  modification  of  the  procedure. 

"Tos.  Sanh.  ix,  11. 


60  Capital  Punishment  Among  the  Jews 

This  latter  reason  is  emphasized  in  the  statement  of 
Rab  Mathna  in  the  Talmud38,  that  the  modification  in 
the  method  was  approved  so  that  the  breath  of  life 
should  be  burnt  out  and  the  body  preserved,  as  was 
supposed  to  have  been  the  case  with  the  sons  of 
Korah.39  Rabbi  Eleazar  adduces  the  same  reason, 
referring  to  the  case  of  the  sons  of  Aaron.40  The 
Tannaitic  tradition  held  that  Nadab  and  Abihu  met 
their  death  through  two  narrow  tongues  of  flame 
coming  forth  from  the  holy  of  holies,  each  dividing 
into  two  and  entering  into  the  nostrils  of  the  two  men, 
thus  burning  out  the  breath  of  life  and  leaving  their 
clothes  and  their  bodies  uninjured.41  Similarly,  the 
Syriac  Apocalypse  of  Baruch  says  that  Sennacherib's 
army  was  burnt  by  God  only  within  their  bodies.42 
This  statement  reflects  the  Midrashic  tradition  that 
because  Shem  covered  his  father's  nakedness,  the 
clothing  of  his  Jewish  descendants  Nadab  and  Abihu, 
and  of  his  non- Jewish  descendants  composing  Senna- 
cherib's army,  was  not  burnt  when  the  fire  of  the  Lord 
burnt  out  their  lives.43 

In  all  this  is  emphasized  the  Pharisaic  desire  to 
preserve  the  body  of  the  victim  uninjured.  According 
to  R.  Joseph,  who  declared  that  a  court  which  sentenced 


S8Sanh.  52a. 

89Num.  xvi,  35. 

*°Lev.  x,  2,  6.  Sifra  ed.  Weiss  ibid.,  45c,  34;  46a,  41; 
Tosafoth  Sanh.  52a. 

41Sanh.  52a;  Sifra  45c,  34.  But  contrast  Josephus  Antiq., 
Ill,  viii,  7,  who  says  that  their  faces  and  breasts  were  burnt. 

*2Baruch  lxiii,  8 ;  Susanna  62,  LXX  text,  says  that  fire  from 
heaven  burnt  the  false  witnesses  after  they  had  been 
precipitated. 

"Lekach  Tob  to  Noach  IX,  23 ;  Tanhuma  Noach  21,  p.  25b, 


Capital  Punishment  Among  the  Jews  61 

to  an  actual  burning  must  have  been  a  Sadducean 
court,44  this  consideration  was  not  of  weight  with  the 
Sadducees.  It  has  been  suggested  therefore,  that  this 
desire  of  the  Pharisees  may  have  been  connected  with 
their  belief  in  the  resurrection  of  the  body,  a  belief 
rejected  by  the  Sadducees.45 

The  method  of  burning  advocated  by  the  Pharisees 
does  not  seem  to  go  back  beyond  the  Christian  era. 
The  incident  of  the  actual  burning  of  the  priest's 
daughter,  witnessed  by  Rabbi  Eleazar  ben  Zadok 
shortly  before  the  fall  of  the  Temple,  might  be  inter- 
preted as  implying  that  the  change  in  method  was  then 
taking  place.46  There  is  no  mention  in  the  sources  of  a 
case  of  burning  being  carried  out  in  the  Pharisaic 
manner,  although  the  full  details  preserved  in  the 
Mishna,  describing  the  application  of  the  method, 
would  imply  that  the  method  had  been  in  use.  But 
the  number  of  cases  of  the  possible  application  of  the 
penalty  was  limited,  and  a  burning  must  have  been  a 
rare  occurrence. 

(c)  Beheading 

The  third  legal  capital  punishment  recognised  by 
the  Rabbis  is  Beheading  (Hereg).  Death  by  the 
sword,  although  recognized  in  a  blood  feud  and  often 
used  by  kings,47  is  nowhere  mentioned  in  the  Bible  as 


"Sanh.  52b. 

«N.  Bruell,  Beth  Talmud,  78,  quoted  by  Buechler  /.  c.  558, 
note  1. 

46Notice  also  the  contradiction  between  Josephus'  account 
of  the  burning  of  Nadab  and  Abihu  and  the  Pharisaic  tradition 
referred  to  above,  note  41. 

«*E.  g.  II  Kings  x,  7. 


62  Capital  Punishment  Among  the  Jems 

a  penalty  ordered  by  law,  except  for  the  apostasy  of  a 
whole  community.48  According  to  the  Mishna,49 
murder  also  is  punished  by  beheading.  The  Boethu- 
sians,50  the  Samaritans,51  Philo,52  Jesus,53  Josephus,54 
the  Book  of  Jubilees,55  Eliezer  ben  Hyrcanus, 
(1st  cent.  C.  E.),56  like  the  later  Karaites,57  all  agree 
in  recognizing  the  Biblical  talio  as  the  punishment  for 
murder.  This  does  not  necessarily  imply  that  the 
method  of  inflicting  the  death  penalty  had  to  be  the 
same  as  the  method  used  by  the  murderer.  It  implies 
only  that  murder  was  punishable  by  death. 

The  Pharisaic  ruling  that  the  death  penalty  for 
murder  was  inflicted  by  decapitation  is  not  disputed 
by  any  of  the  Rabbis.58  But  the  method  of  the 
execution  is  debated.  The  Mishna  states  that  the 
victim's  head  was  cut  off  at  the  throat  with  a  sword, 
as  the  (Roman)  government  carried  out  an  execution.59 
R.  Jehudah  (135-220  C.  E.)  objected  that  this  jus  gladii 
would  disfigure  the  victim.60  He  therefore  advocated, 
that  instead  of  the  old  method  recognized  by  the 
Rabbinical  tradition,  the  murderer's  head  should  be 


48Deut.  xiii,  13-16. 

49Sanh.  ix,  1 ;  Mechilta  to  Exod.  xxi,  12. 
50Scholion  to  Megillath  Taanith  4. 

B1Revel,  Jew.  Quart.  Rev.,  New  Series,  III,  364,  note  86. 
52Ritter,  Philo  und  die  Halacha,  18ff. 
63Matt.  v,  38;  see  also  xxvi,  52. 
*4Antiq.,  IV,  viii,  35. 
B5Jubilees  iv,  32. 
56Baba  Kamma  84a. 

87Revel,  Jew.  Quart.  Rev.,  New  Series,  III,  364-366. 
68Mechilta  83b  to  Ex.  xxi,  20. 
89Sanh.  vii,  3. 

eoSimilarly  Baba  Bathra  8b,  Death  by  the  sword  is  worse 
than  a  natural  death  because  it  disfigures. 


Capital  Punishment  Among  the  Jews  63 

placed  on  a  block  and  chopped  off  at  the  neck  with  an 
ax.  The  Rabbis  protested  that  this  method  of  be- 
heading advocated  by  R.  Jehudah  would  be  far  more 
shameful  to  the  victim  than  that  common  to  the  Jews 
and  the  Romans.  R.  Jehudah  admitted  the  force  of 
their  objection,  but  defended  the  method  advocated  by 
him  because  it  was  not  the  same  as  Roman  custom. 
The  Talmud  then  proceeds  to  eliminate  other  possible 
methods  of  killing  by  the  sword,  such  as  piercing  or 
cleaving  the  body,  by  quoting  the  principle  of  the 
golden  rule  "Thou  shalt  love  thy  neighbor  as  thyself."61 
Therefore  we  must  choose  for  him  the  easiest  death. 
The  comparison  is  then  brought  with  the  heifer  that 
was  killed  to  atone  for  bloodshed.62  As  the  heifer, 
the  substitute  for  the  unknown  murderer,  was  killed 
by  having  its  throat  cut,  so  the  known  human  murderer 
had  his  throat  cut  and  not  his  head  chopped  off  at  the 
neck,  the  golden  rule  again  being  quoted  as  authority.68 
In  this  case  also  the  sources  do  not  mention  an 
actual  case  of  decapitation  being  carried  out  by  a 
Jewish  court.  According  to  the  New  Testament, 
Herod  Antipas  had  John  the  Baptist  killed  by  be- 
heading,64 and  Agrippa  I.  caused  James  the  apostle, 
the  brother  of  John,  to  be  killed  by  the  sword.65    But 


"Lev.  xix,  18. 

«2Deut.  xxi. 

«3Sanh.  52b;  Mechilta  83b  to  Exod.  xxi,  20;  J.  Sanh.  VII, 
24b.  Also  Genesis  Rabba  44  beginning,  and  the  legend  of  the 
neck  of  Moses  becoming  hard  as  marble  before  the  sword  of 
Pharaoh.  J.  Berachoth,  ix,  1  (where  the  exact  phrase  used  by 
the  Mishna  occurs)  ;  Exod.  Rab.  1  to  Exod.  ii,  15. 

"Matt,  xiv,  10 ;  Mark  vi,  27 ;  Luke  ix,  9.  Cf .  the  interpola- 
tion in  Josephus,  Antiq.,  XVIII,  v,  2. 

"Acts  xii,  2.    Cf.  Rev.  xx,  4  of  the  Christian  martyrs. 


64  Capital  Punishment  Among  the  Jews 

neither  of  these  executions  was  ordered  by  a  Jewish 
court  of  law. 

(d)  Strangulation 

The  fourth  method  of  capital  punishment  recognised 
in  Pharisaic  tradition  is  Strangulation  (Henek). 

Strangulation  does  not  appear  in  the  Bible  as  a 
recognised  legal  method  of  punishment.  The  only 
Biblical  instance  of  death  by  strangulation  is  the 
suicide  of  Ahitophel.66 

The  Mishna67  specifies  strangulation  as  the  punish- 
ment for  the  son  who  purposely  wounds  his  parent, 
for  the  false  prophet,  for  the  one  who  prophesies  in 
the  name  of  idolatry,  for  stealing  a  Jew,  for  adultery 
with  a  married  woman,  seducing  a  priest's  betrothed 
or  married  daughter,  etc.  It  was  the  method  of  capital 
punishment  preferred  by  the  Rabbis;  for  R.  Yoshia 
said  that  wherever  the  Bible  does  not  specify  the 
method  of  carrying  out  the  capital  sentence,  strangula- 
tion should  be  adopted  because  it  is  the  least  severe 
measure.  Rabbi  Jonathan  also  said  that  strangulation 
should  be  adopted,  even  though  in  his  judgment 
strangling  is  not  an  easier  method  of  death  than  other 
methods.68  The  reason  for  this  preference  seems  to 
be  because  of  the  four  legally  recognized  methods  of 
capital  punishment,  strangulation  as  it  was  carried 
out  was  the  only  one  which  left  the  body  practically 
uninjured.    The  condemned  man  was  to  be  sunk  up  to 


66II  Sam.  xvii,  23;   Cf.  I  Kings  xx,  31  "ropes  upon  our 
heads."    Tobit  ii,  3  (Strangulation). 
67Sanh.  xi,  1. 
«8Sanh.  52b  bottom;  Sifra  92a,  11. 


Capital  Punishment  Among  the  Jews  65 

his  knees  in  mud  and  then  strangled  by  having  a  hard 
cloth  which  was  wrapped  in  a  soft  one  twisted  around 
his  neck  and  pulled  in  opposite  directions  until  the 
suffocated  victim  died.69  Strangulation  therefore 
satisfied  the  Rabbinic  desire  to  avoid  marring  the  body 
far  better  than  did  stoning,  burning  or  decapitation. 
R.  Jehudah  explains  that  the  death  penalty  as  inflicted 
by  man  should  be  like  that  inflicted  by  God  in  not 
injuring  the  human  body.70  This  consideration  it  was, 
also,  as  we  have  seen,  that  played  a  large  part  in  in- 
ducing the  Rabbis  to  mitigate  the  method  of  burning, 
by  reducing  it  to  strangulation  followed  by  an  almost 
symbolical  burning. 

Again,  in  this  case,  the  sources  do  not  mention  any 
definite  case  in  which  the  punishment  of  strangulation 
was  actually  carried  out  as  a  result  of  a  court  judg- 
ment. But  it  is  clear  that  strangulation  induced  in 
the  older  manner  of  hanging  was  not  infrequently 
consummated  in  the  earlier  Rabbinic  period.  Raguel's 
daughter  Sarah  "thought  to  have  hanged  herself."71  A 
proverbial  remark  in  the  mouth  of  Rabbi  Akiba  (d.  c. 
132  C.  E.),  'if  you  wish  to  strangle  yourself,  hang 
yourself  on  a  high  tree',72  would  indicate  that  hanging 
was  a  well  recognised  method  of  death.  According  to 
one  source,  Judas  Iscariot  hanged  himself.73  It  is 
reported  by  Rabbi  Eleazar,74  that  Simon  ben  Shetach 
(fl.  80  B.  C.  E.)  hanged  women  in  Ascalon.    But  in 


69Mishna  Sanh.  vii,  3. 

™Sanh.  52b;  Sifra  92a,  11. 

71Tobit  iii,  10. 

"Pes.  112a  bottom;  cf.  Semachoth  II,  3. 

73Matt.  xxvii,  5.    But  see  the  different  story  in  Acts  i,  18. 

74Mishna  Sanh.  vi,  4. 


66  Capital  Punishment  Among  the  Jews 

this  case  the  question  arises  whether  they  were  hanged 
alive  or  hanged  as  a  reproach  after  they  had  been 
otherwise  killed. 

Hanging,  according  to  Biblical  custom,  was  meted 
out  to  the  dead  body  of  one  who  had  been  otherwise 
killed.  The  order  of  the  words  in  Deut.  xxi,  22,  23 
implies,  that  first  the  malefactor  has  been  put  to  death, 
and  then  as  an  added  indignity  his  corpse  is  suspended. 
The  same  treatment  of  hanging  the  corpse  was  meted 
out  to  the  murderers  of  Ishbosheth.75  Similarly,  Joseph 
tells  the  chief  baker  that  in  three  days  Pharaoh  will 
take  off  his  head  and  then  hang  his  dead  body.76  The 
dead  bodies  of  Saul  and  Jonathan  were  hung  up  by  the 
Philistines.77  The  five  kings  were  first  killed  by 
Joshua  and  then  hanged.78  A  momentary  hanging  of 
the  corpse  was  recognised  by  the  Rabbis  in  the  case  of 
the  male  idolator  or  blasphemer.79  From  these 
examples  of  Jewish  custom  and  from  the  context  in 
the  Mishna  and  Talmuds,  it  becomes  clear,  that  the 
witchcraft  victims  of  Simon  ben  Shetach's  zeal,  were 
hanged  in  ignominy  after  the  death  penalty  had  been 
otherwise  inflicted.  In  any  case,  the  discussion  in  the 
Mishna  and  the  Talmud80  shows  that  the  action  of 
Simon  ben  Shetach  was  an  exceptional  action,  from 
which  no  conclusion  as  to  the  regular  course  of  law 
could  be  drawn.    There  is  consequently  no  evidence  of 


"II  Sam.  iv,  12. 
"Gen.  xl,  19. 
"II  Sam.  xxi,  12. 

"Josh,  x,  26.     But  in  Persia,  the  victim  may  have  been 
hanged  alive,  as  the  book  of  Esther  seems  to  imply. 
"Mishna  Sanh.  vi,  4;  Sanh.  46b;  J.  Chag.  II,  78a. 
*<>Sanh.  46b. 


Capital  Punishment  Among  the  Jews  67 

hanging  alive  ever  having  been  carried  out  by  a  judicial 
sentence  of  the  Rabbis.  It  need  scarcely  be  added  that 
the  Roman  punishment  of  crucifixion  was  a  penalty 
unknown  to  Jewish  law  and  abhorrent  to  Jewish 
feeling.  The  inhuman  savageness  shown  by  Alexander 
Jannaeus  in  crucifying  his  prisoners  of  war  was  no 
more  a  legally  recognised  form  of  capital  punishment 
than  was  his  cutting  the  throats  of  the  wives  and 
children  before  the  eyes  of  the  crucified  victims.81 

Jewish  Attitude  Towards  Capital  Punishment 

Having  summarized  the  history  of  the  four  methods 
of  legal  capital  punishment  recognised  by  the  Jews, 
we  are  now  in  a  position  to  review  more  broadly  the 
question  of  the  Jewish  attitude  towards  capital 
punishment. 

The  Hebrew  Bible  undoubtedly  stands  for  the  prin- 
ciple of  capital  punishment,  as  has  clearly  emerged 
from  the  detailed  consideration  of  the  particular 
methods  of  inflicting  the  death  penalty  set  forth  above. 
In  Biblical  times,  when  the  organization  of  Jewish 
society  was  comparatively  simple,  retributive  justice 
brooked  few  of  the  law's  delays.  In  the  simplest  and 
most  rapid  manner,  the  avenger  of  blood  exacted  the 
penalty  of  life  for  life.  Society  protected  itself  by  a 
swiftly  effective  punishment. 

But  the  Bible  recognises  in  capital  punishment  also 
a  deterrent  character  and  an  expiatory  character,  in 
addition  to  its  retributive  character.  It  holds  capital 
punishment  to  be  a  necessity  as  a  deterrent.  The  phrases 


"Josephus,  War,  I,  iv,  6. 


68  Capital  Punishment  Among  the  Jews 

"and  thou  shalt  remove  the  evil  from  thy  midst,"  "and 
Israel  shall  hear  and  understand  and  no  more  do  this 
evil,"  which  occur  many  times,  coupled  with  the 
admonition  to  impose  capital  punishment,  show  that 
this  preventive  purpose  was  closely  associated  with  the 
imposition  of  the  death  penalty.  Malicious  false 
witnesses  had  to  be  treated  as  they  would  have  treated 
the  one  against  whom  they  had  testified,  so  that  the 
public  should  take  warning.82 

The  Bible  also  teaches  explicitly  that  capital  punish- 
ment is  the  just  punishment  for  murder,  in  order  to 
atone  for  the  pollution  of  the  land.83  No  pity  was  to 
be  shown  to  the  wilful  murderer.84  The  right  of 
sanctuary  granted  to  the  one  guilty  of  manslaughter, 
was  not  granted  to  the  murderer,85  and  the  crime  of 
shedding  innocent  blood  had  to  be  atoned  for  in  order 
to  cleanse  the  sacred  community  of  Israel.86 

Yet  the  old  Testament  teaching  of  justice  is  tem- 
pered by  mercy.  "But  if  the  wicked  turn  from  all  his 
sins ...  he  shall  surely  live,  he  shall  not  die . . .  Have  I 
any  pleasure  in  the  death  of  the  wicked  ?  saith  the  Lord 
God ;  and  not  rather  that  he  should  turn  from  his  way 
and  live."87  It  was  a  duty  to  try  to  save  those  going  to 
death.88 

The  New  Testament  also  admits  the  right  of  society 


82Deut.  xix,  16-21.  Cf.  also  Deut.  xiii,  12,  xvii,  13,  xxi,  21  of 
the  rebellious  son,  where  the  deterrent  nature  of  the  punish- 
ment is  again  specifically  mentioned. 

83Num.  xxxv,  33;  Deut.  xix,  13. 

84Deut.  xix,  11-13. 

85Exod.  xxi,  14;  Num.  xxxv,  11,  12. 

86Exod.  xxi,  13. 

87Ezek.  xviii,  21-23;  xxxiii,  14-16,  19. 

88Prov.  xxiv,  11-13. 


Capital  Punishment  Among  the  Jews  69 

to  exact  capital  punishment.89  We  have  seen  that 
Philo,  Josephus90  and  the  apocryphal  and  apocalyptic 
books  also  do  not  doubt  the  reasonableness  and  neces- 
sity of  capital  punishment.  In  the  last  pre-Christian 
century,  the  Jewish  people,  particularly  the  Sadducees 
who  were  in  the  ascendant,  still  followed  the  Bible  in 
their  maintenance  of  the  theory  and  the  practise  of 
capital  punishment.  The  letter  and  the  spirit  of  the 
Biblical  laws  governed  Jewish  practise.  But  in  the  first 
post-Christian  centuries,  these  teachings  of  the  Bible 
were  modified  in  many  directions. 

It  may  be  safely  affirmed  that  the  Rabbis  did  not 
question  the  right  of  society  to  inflict  capital  punish- 
ment, even  though  they  pictured  God  as  grieving  over 
the  death  of  the  wicked.91  In  the  Mishna,  they 
enumerated  thirty-seven  crimes  (nineteen  of  morals, 
twelve  of  religious  law,  three  against  parents  and  three 
assaults),  which  they  held  to  be  punishable  by  death. 
In  commenting  on  the  Biblical  warning  "thine  eye 
shall  not  spare  the  wilful  murderer,"  they  say  'thou 
shalt  not  say  wherefore  should  I  punish  murder  by 
murder.  The  one  whom  thou  knowest  indubitably  to 
be  guilty  of  a  premeditated  murder  thou  shalt  not  pity 
nor  spare.'92  The  sternness  of  the  capital  sentence  was 
recognised  by  the  Rabbis  as  being  in  the  best  interests 
both  of  the  criminal  and  of  society.98     "When  the 


89Matt.  xy,  4;  xxvi,  52;  John  xix,  10,  11;  Acts  xxv,  11; 
Romans  xiii,  1-14. 

90Cont.  Apion.,  II,  31,  "the  punishment  for  most  sinners  is 
death."    Antiq.,  IV,  viii,  35. 

91Mishna  Sanh.  vi,  5. 

92Sifre  to  Deut.  xix,  13.  Cf.  Deut.  xiii,  9  of  the  seducer  to 
idolatry. 

98Mishna  Sanh.  viii,  5. 


70  Capital  Punishment  Among  the  Jews 

wicked  perish  there  is  joyful  shouting,"  was  quoted  in 
justifying  the  death  penalty,  to  convince  those  who 
hesitated  to  help  bring  a  capital  offender  to  justice.94 
R.  Akiba  declared  that  so  long  as  sinners  such  as 
Achan  remain  alive,  the  Divine  anger  rests  upon  the 
community.  But  when  they  are  put  to  death,  the 
Divine  favor  is  restored.95  The  noxious  thorns  in  the 
garden  of  humanity  must  be  destroyed.96  When  Akiba 
(d.  c.  132  C.  E.),  claimed  that  had  he  been  a  member 
of  the  Sanhedrin,  a  death  sentence  for  murder  or 
immorality  would  never  have  been  imposed,  Rabbi 
Simon  ben  Gamliel  retorted  "had  you  been  a  member 
of  the  Sanhedrin,  you  would  have  been  responsible  for 
the  increase  of  murders."97 

The  Rabbis  also  approved  of  the  preventive  char- 
acter of  the  Biblical  death  penalty.  For  instance,  the 
death  penalty  for  the  rebellious,  gluttonous  son,  is 
regarded  by  them  not  as  a  punishment  commensurate 
with  the  wrong  that  the  son  may  have  committed,  but 
as  a  preventive  measure,  necessary  for  society  and 
necessary  for  the  criminal.  In  explaining  why  the  son 
must  pay  the  penalty  of  death  even  though  he  has  not 
spilled  blood  nor  committed  any  major  offence,  they 
say  that  the  Torah  looks  ahead.  Let  him  die  before  he 
has  incurred  graver  guilt ;  otherwise  he  will  sink  lower 
and  lower  until  finally  he  commits  a  capital  offence. 
Therefore  he  should  be  put  out  of  the  way  as  a  pre- 


84Prov.  xi,  10;  Mishna  Sanh.  iv,  5. 

85Mishna  Sanh.  x,  6  end,  with  reference  to  Josh,  vii,  1  and 
vii,  26. 
98Genesis  Rabba  44  to  Gen.  xv,  1. 
87Mishna  Mace,  i,  10;  Mace.  7a,  Tosafoth. 


Capital  Punishment  Among  the  Jews  71 

ventive  measure.98  Although  we  immediately  see  the 
danger  lurking  in  such  a  principle  of  preventive  pun- 
ishment, the  recognition  of  this  principle  by  the  Rabbis, 
is  further  evidence  that  in  theory  they  approved  of  the 
death  penalty. 

Furthermore,  the  Rabbis  approved  of  a  fitting 
retribution.  Biblical  justice  demands  that  the  punish- 
ment correspond  with  the  crime.  He  who  digs  a  pit 
should  fall  into  it."  The  Psalmist  prays  that  God  may 
repay  the  wicked  according  to  the  works  of  their 
hands.100  The  Rabbis  recognise  this  principle  of 
retribution  in  kind  in  every  phase  of  life.101  The 
principle  underlying  the  talio  is  that  which  they  call 
"measure  for  measure."102  Bloodshed,  according  to 
this  principle,  could  be  expiated  only  by  bloodshed.108 

The  Rabbis  also  saw  in  the  death  penalty  an  expia- 
tion of  the  sin  that  had  been  committed.  This  supreme 
expiation  was  religious  in  character,  and  was  brought 
into  connection  with  the  Temple  and  its  sacrificial 
worship.  Thus  it  is  stated  that  only  so  long  as  the 
altar   stood,104   or  the   priest  officiated,106   could   the 


98Mishna  Sanh.  viii,  5 ;  Sanh.  72a ;  Sif re  to  Deut.  xxi,  18-21. 
It  must  be  remembered  that  this  case  is  purely  theoretic.  See 
text  to  notes  214  and  215. 

"Ps.  vii,  16f ;  Eccl.  x,  8f ;  Prov.  xxvi,  27;  Ben  Sira  xxvii,  26. 

100Ps.  xxviii,  4;  Isa.  iii,  10,  11;  Job  xxxiv,  11;  Obad.  15; 
Lev.  xxiv,  19;  Prov.  xxiv,  29;  Jer.  1,  29. 

101Aboth  ii,  7;  Sota  i,  8;  Num.  Rab.  xviii,  18;  Sota  8a,  11a; 
Pes.  28a ;  Baba  Kamma  92a. 

102Sanh.  100a,  bottom ;  Mishna  Sota  i,  7. 

103Gen.  ix,  6,  which  is  not  necessarily  meant  originally  as  a 
legal  principle,  but  which  is  used  by  the  Rabbis  as  such, 
Sanh.  57b.  Cf.  Matt,  xxvi,  52;  Sanh.  72b. 

104Mechilta  de  R  Simon,  p.  126,  with  reference  to  Exod. 
xxi,  14. 

105Sanh.  52a  with  reference  to  Deut.  xvii,  9;  Maimonides 
Hilch.  Sanh.  xiv,  11. 


72  Capital  Punishment  Among  the  Jews 

death  penalty  be  carried  out.106  According  to  the 
opinion  of  R.  Akiba,107  a  capital  sentence  on  "a  defiant 
elder"  could  not  be  consummated  outside  of  Jerusalem, 
nor  even  in  Jabneh  by  the  great  Sanhedrin,  while  the 
Temple  still  stood;  but  he  should  be  brought  to 
Jerusalem  and  put  to  death  on  one  of  the  middle  days 
of  the  next  festival  when  the  city  and  the  Temple 
were  thronged  with  worshippers.  Those  condemned 
to  death  were  given  the  opportunity  to  confess  their 
sins  when  within  ten  cubits  of  the  place  of  execution, 
the  confession  opening  for  them  the  gates  of  the 
future  world.108  It  is  related  of  one  condemned  man 
that  when  bidden  confess  he  prayed  "May  my  death  be 
an  atonement  for  all  my  sins". .  ,109  If  the  condemned 
man  was  unable  to  confess  fully,  he  was  bidden  say 
"May  my  death  be  an  atonement  for  all  my  sins."110 

These  four  considerations,  (a)  the  plain  command 
of  the  written  word  of  the  Torah,  (b)  the  recognition 
of  the  deterrent  and  preventive  value  of  capital 
punishment,  (c)  the  claims  of  just  retribution  and  (d) 
the  recognition  of  the  expiatory  character  of  the  death 
penalty,  leave  it  beyond  doubt  that  the  Rabbis  approved 
of  the  theory  of  capital  punishment.  They  accepted 
without  question  the  teachings  of  the  Torah,  implying 
the  justifiability  of  imposing  the  death  penalty.  At  the 
same  time,  numberless  passages  testify  to  the  sacred- 


106The  Jewish  courts  outside  of  Palestine  were  considered 
as  having  jurisdiction  in  capital  cases  only  so  long  as  the 
great  Sanhedrin  continued  to  hold  its  sessions  in  the  special 
hall  of  the  Temple.    Mishna  Mace,  i,  10. 

107Mishna  Sanh.  xi,  4  in  connection  with  Deut.  xvii,  13. 

108Mishna  Sanh.  vi,  2 ;  Sif re  Zutta  to  Num.  v,  6. 

109Tos.  Sanh.  ix,  5. 

110Mishna  Sanh.  vi,  2. 


Capital  Punishment  Among  the  Jews  73 

ness  in  which  they  held  human  life,111  and  many 
passages  prove  that  they  had  a  vivid  sense  of  the 
irrevocability  of  a  consummated  death  sentence.  To 
put  a  man  to  death  wrongfully  is  as  though  one 
destroyed  the  whole  world.113 

Rabbinical  Modifications 

But  it  is  no  less  clear  that  the  Rabbis  did  not  favor 
capital  punishment  in  practise.  It  is  true,  as  will  be 
shown  later,  that  after  the  fall  of  the  Temple  in 
70  C.  E.,  they  no  longer  had  the  right  of  imposing  the 
death  penalty.  But  we  possess  their  theory  of  what 
their  practise  would  have  been  had  they  had  the 
opportunity  of  exercising  it,  and  this  theory  tends 
altogether  in  the  direction  of  modifying  capital  pun- 
ishment to  its  virtual  abolition. 

The  problem  with  which  the  Rabbis  grappled  was 
how  could  the  death  penalty  which  was  demanded  by 
the  Law  be  mitigated  in  the  face  of  the  explicit  words 
of  the  Torah.  Commutation  of  the  death  sentence  by 
a  fine  or  by  wergild  could  not  be  considered  where  the 
Bible  did  not  specify  the  option  of  a  ransom  (Kofer). 
The  Torah  expressly  prohibits  modifying  into  a  fine 
the  death  penalty  which  was  the  due  of  the  murderer.118 
The  Bible  furnishes  no  precedent  for  commuting  the 
death  penalty  to  one  of  deportation.  Exile  involved 
the  banishment  of  the  Jew  from  the  full  exercise  of 


111Their  use  of  the  phrase  "worthy  of  death"  applied  to  such 
mild  offenders  as  the  scholar  with  stained  clothing  (Sabb. 
104a),  is  naturally  to  be  understood  as  an  emphatic  hyperbole. 

112E.  g.  Mishna  Sanh.  iv,  5;  Tos.  Sanh.  ix,  5;  Mace.  5b. 

"3Num.  xxxv,  31,  32;  Exod.  xxi,  30,  32. 


74  Capital  Punishment  Among  the  Jews 

Judaism.  Herod  was  condemned  for  selling  law- 
breakers out  of  the  kingdom.  "For  slavery  to  foreigners 
and  such  as  did  not  live  after  the  manner  of  the  Jews, 
and  necessity  to  do  whatever  such  men  should  com- 
mand, was  an  offence  against  our  religion  rather  than 
a  punishment  to  such  as  were  found  to  have  offended, 
such  a  punishment  being  avoided  in  our  original 
laws," — the  Bible.114  The  cities  of  refuge  no  longer 
had  asylum  power.  Exile  was  considered  a  more 
grievous  punishment  than  death  by  the  sword  or  by 
starvation  and  was  regarded  as  harder  even  than  death, 
itself  the  hardest  of  the  ten  hardest  things  created  in 
the  world.115  Enslavement  to  Jews  was  specified  by 
the  Bible  as  a  legitimate  punishment  only  in  certain 
cases.116  Similarly,  both  the  application  and  the 
severity  of  scourging  were  limited.117 

Prisons  in  Jewish  antiquity  were  used  usually  as  a 
ward  house  in  which  the  accused  was  detained  until 
sentence  could  be  pronounced.118  But  sometimes  the 
prison  seems  to  have  been  used  also  as  a  punitive 
institution.119  In  one  instance,  the  principle  of  com- 
muting a  death  penalty  to  a  sentence  of  life  imprison- 


114Josephus  Antiq.,  XVI,  i,  1.    Compare  I  Sam.  xxvi,  19. 

"5Baba  Bathra  8b,  10a. 

116Exod.  xxii,  2 ;  II  Kings  iv,  1 ;  Josephus  Antiq.,  XVI,  i,  1. 

117Lev.  xix,  20;  Deut.  xxii,  18;  xxv,  3;  II  Cor.  xi,  24;  Luke 
xxiii,  15,  16,  22 ;  Josephus  Antiq.,  IV,  viii,  21 ;  XIII,  x,  6 ; 
Mace,  iii,  1  seqq.,  15.  But  see  Maimonides  Sanh.  19,  where 
among  the  two  hundred  and  seven  cases  for  which  flagellation 
is  the  legal  punishment,  eighteen  cases  are  enumerated  in 
which  flagellation  is  imposed  on  the  one  deserving  death 
"from  the  hands  of  Heaven." 

118Lev.  xxiv,  12 ;  Num.  xv,  34 ;  Acts  iv,  3 ;  xii,  4 ;  xxii,  19 ; 
Mechilta  Mishpatim  VI,  p.  83a;  Schechter,  Sectaries,  p.  12, 
11.  2-6;  Sulzberger,  Jew.  Quart.  Rev.,  1914-15,  V,  598-604. 

119Ezra  vii,  26. 


Capital  Punishment  Among  the  Jews  75 

ment  is  recognised.  The  Mishna  prescribes100  that 
when  a  man  has  twice  committed  a  crime  for  which 
excision  is  the  penalty  and  he  has  received  the  lash 
twice,  on  his  committing  this  crime  a  third  time,  he  is 
imprisoned  and  fed  on  barley  until  he  bursts.  Or 
when  one  has  committed  a  murder  and  there  are  no 
witnesses  to  condemn  him,  he  is  imprisoned  and  fed 
on  frugal  fare  of  bread  and  water.121  In  other  words, 
when  a  murder  has  been  committed  and  it  is  certain 
that  the  accused  man  was  the  murderer,  but  owing  to 
legal  technicalities,122  it  is  impossible  legally  to  prove 
his  guilt;  or  if  the  circumstantial  evidence  is 
thoroughly  convincing,128  the  Rabbis  felt  that  it  would 
be  dangerous  to  society  and  against  all  principles  of 
justice  to  allow  such  a  known  murderer  to  go  free.  In 
any  of  these  cases,  he  should  be  imprisoned  in  a  den 
of  the  height  or  length  of  a  man  and  fed  in  such  a 
manner  as  to  bring  about  his  early  death.  This  seems 
to  be  the  only  passage  in  Rabbinical  literature  in  which 
imprisonment  is  spoken  of  as  a  possible  mitigation  of 
the  immediate  death  penalty. 

From  one  passage124  it  would  seem  that  in  later 
Rabbinic  times,  (c.  350  C.  E.),  when  the  penalty  of 
death  for  murder  could  no  longer  be  imposed  by  the 
Jewish  court,  it  was  recommended  that  the  death 
sentence  be  commuted  into  one  of  blinding  the  mur- 


120Sanh.  ix,  5. 

i2*Cf.  I  Kings  xxii,  27. 

122Either  the  witnesses  were  separated  and  not  together, 
(Rab),  or  the  witnesses  had  not  warned  the  murderer, 
(Samuel),  or  they  had  tripped  up  in  giving  evidence,  (Abimi). 

123J.  Sanh.  ix,  5. 

12*Sanh.  27a  bottom. 


76  Capital  Punishment  Among  the  Jews 

derer.  When  it  was  reported  that  Bar  Chama  had 
committed  a  murder,  the  Exilarch  bade  Rab  Abba  (or 
Acha)  bar  Jacob  investigate  the  case.  If  it  proved  that 
Bar  Chama  was  guilty,  his  eyes  should  be  put  out.126 
But  this  passage  stands  alone,  and  does  not  allow  us 
to  draw  any  conclusion  as  to  a  general  practise.  More- 
over the  expression  "to  put  out  his  eyes"  may  possibly 
be  figurative,  meaning  imposing  a  fine  or  taking  away 
authority.128 

We  see,  therefore,  that  the  necessity  of  adhering  to 
the  express  commands  of  the  Torah  prohibited  the 
Rabbis  from  commuting  a  death  sentence  into  scourg- 
ing, imprisonment,  blinding  or  any  other  kind  of 
mutilation,  exile,  enslavement,  a  fine  or  any  other 
punishment.  The  exact  words  of  the  Torah  had  to  be 
upheld. 

Therefore,  while  rigidly  maintaining  the  Biblical 
principle  of  capital  punishment,  the  Rabbis  availed 
themselves  of  their  right  to  modify  the  method  of 
executing  the  death  sentence.  If  they  upheld  the  death 
penalty,  there  was  nothing  to  prevent  their  mitigating 
the  severity  of  its  application  in  every  way  possible. 
We  have  already  seen  how  stoning  was  modified  in 
practise  to  precipitation,  and  burning  modified  to 
strangulation  followed  by  a  nominal  burning.  Our 
consideration  showed  that  these  changes  in  method 


125The  blind  is  one  of  the  four  classes  (poor,  leper,  blind, 
childless),  who  are  considered  as  dead.  Nedarim  62b. 
Practically,  the  one  blinded  is  rendered  harmless  for  the 
future. 

126Rashi  ad  loc.  Kohut's  Aruch  3H  .  See  also  Peah  viii,  9 
of  the  unjust  judge,  "until  his  eyes  grow  dim,"  with  reference 
to  Exod.  xxiii,  8,  Deut.  xvi,  19. 


Capital  Punishment  Among  the  Jews  77 

apparently  came  about  in  order  to  secure  the  easiest 
and  most  humane  methods  of  death,  (since  according 
to  the  golden  rule  even  the  condemned  criminal  is 
one's  brother),  and  in  order  to  spare  the  body,  so  far 
as  possible,  all  mutilation  or  disfigurement.  The 
general  principle  governing  the  lightening  of  the 
methods  of  death  was  that  wherever  the  Torah  does 
not  specify  which  method  of  death  is  to  be  employed, 
the  easiest  and  most  humane  method  is  to  be  used.127 

Legal  Restrictions 

But  the  most  thoroughgoing  modification  of  the 
system  of  capital  punishment  was  not  brought  about 
through  change  in  the  methods  of  imposing  the  death 
penalty,  but  through  surrounding  the  accused  with  so 
many  legal  safeguards  that  it  became  virtually  im- 
possible ever  to  impose  a  death  sentence. 

The  law  limited  the  right  of  trying  capital  cases  to  the 
high  tribunal  of  twenty-three,  not  even  the  king  having 
the  right  to  put  to  death  other  than  through  the  San- 
hedrin.128  According  to  Rabbinical  tradition,  one  very 
large  class  of  capital  cases  was  taken  out  of  the  juris- 
diction of  any  human  court,  namely  those  in  which  the 
Bible  stipulates  Kareth  or  Excision  as  the  punishment. 
This  ruling  at  one  stroke  absolved  the  Rabbinical 
courts  from  the  obligation  of  imposing  the  death 
sentence  in  a  large  number  of  cases. 

In  many  passages  in  the  Pentateuch  it  is  stated  that 
the  one  committing  certain  transgressions  "will  be  cut 


"*Sifra  92a,  11;  J.  Sanh.  VII,  24b;  Sanh.  52b,  bottom. 
128Josephus,  Antiq.,  XIV,  ix,  3;  Mishna  Sanh.  ii,  2. 


78  Capital  Punishment  Among  the  Jews 

off  from  his  kinsfolk."129  Modern  Biblical  scholars 
understand  the  phrase  as  referring  to  the  imposition  of 
the  death  penalty  by  the  court.  The  Karaites  also 
understood  Kareth  in  this  sense,  through  a  comparison 
of  Exod.  xxxi,  14b  with  the  parallel  passages  xxxi, 
14a,  15  and  Num.  xv,  35.  The  one  passage  prescribes 
Kareth,  the  others  prescribe  death  as  the  punishment 
for  Sabbath  profanation.  Similarly  Kareth  in  Lev. 
xx,  3  is  the  equivalent  of  stoning,  the  punishment 
designated  in  the  preceding  verse  for  Moloch  worship ; 
and  Kareth  for  blasphemy  in  Num.  xv,  30  is  the 
equivalent  of  stoning  mentioned  as  the  punishment  for 
the  same  crime  in  Lev.  xxiv,  14.  The  fate  of  Achan,130 
of  Naboth,131  and  of  the  adulteress,132  would  seem  to 
show  that  the  whole  family  of  the  convicted  person 
could  judicially  be  put  to  death.  In  some  cases,133  the 
death  penalty  is  specified  as  well  as  the  penalty  of 
Kareth. 

None  the  less,  the  Rabbis  consistently  understand 
Kareth  to  be  not  a  death  penalty  inflicted  by  man  but 
a  punishment  left  in  the  hands  of  Heaven.  Thus  the 
Rabbis  interpret  Kareth  specifically  as  dying  child- 
less,134 or  as  dying  at  50  years,  or,  according  to  Raba, 
between  50  and  60  years,  before  completing  the  other- 
wise destined  span,135  or  as  the  cutting  off  of  the  soul 


129Usually  translated  "cut  off  from  his  people."  But  the 
Hebrew  term  amav  is  plural  and  seems  to  mean  'kinsfolk' 
rather  than  'people.'  Gen.  xvii,  14;  Exod.  xii,  15,  19; 
xxx,  33,  38;  Lev.  vii,  20f,  25,  27;  xvii,  4,  9,  10,  14;  xx,  6; 
xxii,  3;  Num.  xix,  13,  20,  etc.,  etc. 

130Josh.  vii,  24f. 

131I  Kings  xxi,  3 ;  II  Kings  ix,  26. 

132Ezek.  xxiii,  47;  Cf.  also  II  Kings  xxv,  7;  Num.  xvi,  32. 

183E.  g.  Exod.  xxxi,  14;  Lev.  xviii,  7,  8,  15,  20,  23,  29. 


Capital  Punishment  Among  the  Jews  79 

in  the  future  life.188  For  this  interpretation  of  Kareth 
as  a  punishment  by  Heaven  would  speak  the  personal 
pronoun  in  the  phrase,  "/  will  cut  off,"  the  active  form 
sometimes  used.137  For  this  would  also  speak  the 
passages  wherein  the  death  penalty  is  threatened  as  well 
as  Kareth,  usually  adduced  as  favoring  the  other  inter- 
pretation of  Kareth,  if  we  understand  them,  as  we 
well  may,  as  threatening  an  alternative,  either  the 
death  penalty  by  the  court  or  Kareth  by  God.  That 
this  may  be  the  meaning  is  clear  from  a  careful  reading 
of  Lev.  x,  1-5,  wherein  the  Moloch  worshipper  is 
threatened  with  death  by  stoning  at  the  hands  of  the 
people,  or  if  the  people  do  not  so  punish  him,  then  God 
will  cut  him  off.  Such  phrases  as  "they  shall  bear 
their  sin,"138  or  "they  shall  bear  their  sin  and  shall  die 
childless,"139  or  "they  shall  die  childless,"140  would 
also  be  most  naturally  understood  as  taking  the  right 
of  punishment  away  from  the  human  court  and 
leaving  it  to  Heaven.  It  has  been  suggested  that  the 
Niqtal  form,  usually  translated  as  passive  "and  shall 
be  cut  off,"  should  be  understood  in  a  reflexive  sense, 
"(that  soul)   cuts  itself  off."     But  this  explanation 


i3*Yeb.  55a. 

135Moed  Katan  28a;  J.  Bikk.  II,  1,  64c. 

136Sanh.  64b,  90b  to  Num.  xv,  31;  Maimonides,  Hilchoth 
Teshuba  8.  According  to  Maimonides,  "death  by  the  hands 
of  Heaven"  differs  from  Kareth,  in  that  the  former  refers 
only  to  this  life,  the  death  serving  as  an  expiation,  whereas 
Kareth  refers  also  to  the  future  life.  But  see  Jebam.  2a, 
Tosafoth   riCN  on  the  meaning  of  Kareth. 

i"Lev.  xvii,  10;  xx,  3,  5,  6.  Cf.  "and  /  will  destroy," 
parallel  to  "and  shall  be  cut  off"  Lev.  xxiii,  29,  30. 

issLev.  xx,  19. 

189Lev.  xx,  20. 

140Lev.  xx,  21. 


80  Capital  Punishment  Among  the  Jews 

seems  unlikely  in  face  of  the  occurrence  of  the  active 
forms  "I  will  cut  off"  or  "and  I  will  destroy  that  soul 
from  the  midst  of  its  people."137  Whatever  be  the 
preferable  explanation  of  Kareth  in  each  passage  in 
which  the  term  occurs,  the  interpretation  consistently 
given  to  it  by  the  Rabbis  is  highly  significant.  Their 
tendency  away  from  capital  punishment  is  clearly  seen 
in  their  leaving  to  the  heavenly  tribunal  the  punish- 
ment in  all  cases  where  Kareth  is  prescribed  in  the 
Bible.141 

The  other  restrictions  in  court  procedure  are  too 
well  known  to  need  setting  forth  here  in  detail.  It  is 
enough  to  mention  some  of  the  rules  of  evidence, 
particularly  the  minute  safeguards  with  which  the 
giving  of  testimony  was  surrounded.  Torturing  of 
witnesses  to  extract  from  them  convicting  evidence 
was  entirely  unknown.  The  aim  of  the  court  was  to 
lead  the  witnesses  into  giving  evidence  favorable  to 
the  accused,  not  to  coerce  them  into  helping  condemn 
him.  According  to  R.  Jose  b.  Jehudah,  a  witness  could 
testify  only  in  favor  of  the  accused.142  The  two  wit- 
nesses had  to  be  free  adult  men,143  sound  in  mind  and 
body,  of  unquestioned  integrity,144  and  free  of  all 
suspicion  of  personal  relationship  to  the  defendant145 
or  interest  in  the  case.146  They  were  first  solemnly 
warned  and  adjured  as  to  the  blood  responsibility 


141Kareth,  according  to  Rabbinical  law,  could  be  commuted 
to  scourging  under  certain  conditions.    Mishna  Mace,  iii,  15. 
142Sanh.  33b.  bottom. 
li3Baba  Kamma  88a. 

144Mishna  Sanh.  iii,  3 ;  Sanh.  24a,  24b,  25b. 
145Mishna  Mace,  i,  8 ;  Mace.  6b,  7a ;  Mishna  Sanh.  iii,  4. 
146Baba  Bathra  43a. 


Capital  Punishment  Among  the  Jews  81 

resting  on  them  and  their  heirs  after  them.147  They 
were  then  cross-examined  separately,148  very  search- 
ingly,149  with  the  haqira  affecting  place,160  time,  the 
warning,  etc.,  and  with  the  bediqa  going  into  the 
smaller  details.151  A  slight  contradiction  or  dis- 
crepancy in  their  evidence  invalidated  their  testi- 
mony.162 They  had  to  prove  the  act,  and,  what  was  far 
more  difficult,  prove  also  the  intention.  In  order  to  be 
able  to  prove  deliberate  and  understanding  premedita- 
tion, the  witnesses  must  both  have  warned  the  accused 
before  he  committed  the  crime,168  with  a  clear  warning 
(Hathraa),  including  a  definite  reference  to  the  kind 
of  punishment  and  the  measure  of  punishment  which 
his  act  would  involve.164  The  warning  given  by  them 
had  to  have  been  so  clearly  understood,  that  the 
accused  had  replied  that  he  would  commit  the  crime 
none  the  less,  thereby  showing  that  he  had  fully 
understood  the  warning.166  The  act  must  have  followed 
closely  on  their  warning,  or  the  warning  by  the  wit- 
nesses was  not  considered  adequate,  on  the  ground 
that  in  the  intervening  time  it  may  have  escaped  the 
culprit's  memory.166    If  there  was  a  technical  flaw  in 


147Mishna  Sanh.  iv,  5;  Sanh.  37a. 

148Sanh.  29a;  Susanna  52  seqq. 

"oSanh.  32b. 

150Mishna  Sanh.  v,  1. 

161Mishna  Sanh.  iii,  6;  v,  2. 

152Mishna  Sanh.  v,  2;  Sanh.  40a;  Susanna  ibid.;  Mark  xiv, 
56,  59. 

153Mishna  Sanh.  passim;  Sanh.  40a-41a;  80a;  Mishna  Mace. 
1,  9;  Mace.  6b;  Mechilta  to  Exod.  xxi,  12;  Sifra  to  Num.  xv, 
33  and  to  Deut.  xxii,  24. 

154Sanh.  8b;  Mace.  16a. 

16»Sanh.  8b. 

1B«Sanh.  40b. 


82  Capital  Punishment  Among  the  Jews 

the  giving  of  this  warning  by  the  witnesses,  the 
accused  was  given  the  benefit  of  the  doubt  that  there 
had  not  been  dolus  but  only  culpa,167  and  where  the 
crime  was  not  premeditated,  no  death  penalty  could 
be  imposed.168  ^ 

Further,  circumstantial  or  presumptive  evidence  was 
disallowed.  The  witnesses  had  to  have  seen  each  other 
when  the  act  was  committed,159  and  had  to  have  seen 
the  act  itself,  and  not  only  what  went  before  it  or  what 
followed  it.  For  instance,  even  in  early  Rabbinic  days, 
Simon  ben  Shetach  (fl.  80  B.  C.  E.),  who  undoubtedly 
believed  in  and  imposed  the  death  sentence  during  his 
lifetime,160  did  not  consider  the  strongest  circumstan- 
tial evidence  as  evidence.  It  is  related161  that  he  once 
saw  one  man  pursuing  another.  He  followed  them 
and  found  the  pursued  man  murdered  and  the  pursuer 
holding  a  sword  dripping  with  blood.  Simon  said  to 
the  murderer:  'Either  you  or  I  killed  this  man.  But 
what  can  I  do  ?  Your  blood  guilt  is  not  delivered  into 
my  hands ;  for  the  Torah  says162  that  you  can  be  con- 
demned only  by  the  actual  testimony  of  two  or  more 
witnesses.  May  God  who  knows  the  inward  thoughts 
requite  the  one  who  committed  this  murder/163 

In  these  and  in  similar  ways,  tradition  developed  the 


157Sanh.  41a;  8b;  Mace.  6b;  9b. 

168E.  g.  a  money  penalty  was  allowed  in  compensation  for 
unintentional  murder  or  constructive  homicide,  Exod.  xxi, 
29,  30. 

169Macc.  6b. 

160E.  g.  Mishna  Sanh.  vi,  4. 

161Sanh.  37b;  Mechilta  to  Exod.  xxiii,  7. 

162Deut.  xvii,  6. 

1MSanh.  37b  and  Tosafoth;  Maimonides,  Hilchoth  Sanh. 
xx,  1. 


Capital  Punishment  Among  the  Jews  83 

rules  contained  in  the  Torah,  that  two  witnesses  were 
needed  and  that  the  witnesses  themselves  had  to  carry 
out  the  death  sentence.  As  the  number  of  necessary 
conditions  increased,  it  became  virtually  impossible  in 
a  capital  case  to  obtain  unassailable  testimony  adequate 
for  a  condemnation. 

Many  other  legal  refinements  made  it  still  more 
certain  that  no  one  would  ever  be  legally  condemned  to 
death.  For  example,  murder  was  not  punishable  by 
death,  as  we  have  seen,  if  it  could  be  proved  to  have 
been  not  fully  premeditated  or  intentional.  Thus,  if 
the  murderer  had  meant  to  kill  one  man  and  had  killed 
another ;  or  had  he  meant  to  wound  him  on  the  thigh 
and  instead  had  struck  him  on  the  heart  and  killed  him, 
capital  punishment  could  not  be  meted  out,  since  the 
criminal  intent  to  kill  was  not  present.164  Again,  if  the 
murderer  were  weak-minded,  or  intoxicated,  or  a  deaf- 
mute,  or  a  minor,  or  acting  under  compulsion  or  acting 
in  self  defence,165  etc.,  he  could  not  be  condemned  to 
death.  Or  again,  if  the  man  murdered  had  been 
fatally  ill  or  for  any  other  reason  would  not  have  lived 
had  he  not  been  murdered,  the  guilty  man  was  not 
considered  liable  to  the  death  penalty.  And  even  if  the 
murderer  was  suffering  from  an  illness  that  in  the 
ordinary  course  would  shortly  kill  him,  the  court  would 
not  anticipate  God's  decree  by  carrying  out  the  death 
penalty. 

But  over  and  above  these  thick  protecting  hedges 
which  made  it  virtually  imposible  to  obtain  a  death 
sentence,  there  were  many  other  considerations  which 


ie4Mishna  Sanh.  ix,  2. 
i«Sanh.  72a- 


84  Capital  Punishment  Among  the  Jews 

further  removed  the  possibility  of  executing  a  capital 
sentence.  Thus  there  was  a  thorough-going  rule  that 
no  punishment  affecting  the  personality  of  a  man166 
might  be  imposed  on  a  deduction  a  fortiori.167  Unless 
there  was  explicit  Biblical  warrant  for  the  death 
penalty,  it  was  prohibited  to  deduce  this  penalty  by 
rules  of  interpretation,  a  principle  in  itself  that  worked 
consistently  towards  moderating  the  severities  of  the 
written  law. 

Moreover,  just  as  the  power  of  the  witnesses  was 
minimized  and  the  rights  and  privileges  of  the  de- 
fendant were  magnified,  so  also  the  rights  and 
privileges  of  the  judges  were  hemmed  in  and  restrained 
in  every  way.  Only  a  high  court  of  twenty-three 
could  try  capital  cases.168  The  judges  all  had  to  be 
picked  men  of  high  standing,  character  and  attain- 
ments.169 They  were  impressed  with  the  words  of  their 
own  warning  to  the  witnesses,  that  he  who  causes  a 
soul  to  be  put  to  death  unjustly  is  as  though  he  had 
destroyed  the  whole  world.170  When  engaged  on  a 
capital  trial,  they  were  put  under  severe  discipline.171 
They  took  the  place  both  of  the  counsel  for  the  de- 
fendant and  of  the  jury.172  Two  death  penalties  could 
not  be  pronounced  on  one  day.173    For  final  condemna- 


166Except  in  pecuniary  penalties,  Baba  Kamma  4b, 
Tosafoth. 

167Macc.  Sb;  Kent.  3a  top;  Sanh.  54a  bottom;  76a;  Sifra  to 
Lev.  xx,  17. 

168Mishna  Sanh.  i,  4. 

16»Mishna  Sanh.  iv,  2;  Sanh.  36b. 

170Mishna  Sanh.  iv,  5. 

171Tos.  Sanh.  ix,  1. 

172Tos.  Sanh.  vii,  2.  The  duty  of  trying  to  find  means  of 
freeing  the  accused  is  deduced  from  Num.  xxxv,  25. 


Capital  Punishment  Among  the  Jews  85 

tion,  a  second  ballot  had  to  be  taken  on  the  following 
day.174  If  twelve  of  the  twenty-three  judges  were  in 
favor  of  acquittal  against  the  other  eleven,  the  de- 
fendant was  freed  by  the  majority  of  one.  But  if 
twelve  held  him  guilty  and  eleven  held  him  innocent, 
the  defendant  could  not  be  condemned  by  the  majority 
of  one.  A  majority  of  at  least  two  was  necessary  for 
a  condemnation.176  A  judge  was  not  permitted  to 
change  his  mind  and  declare  his  decision  for  a  con- 
demnation when  once  he  had  voted  for  an  acquittal.179 
Unless  each  judge  could  give  an  individual  reason  for 
his  opinion  his  vote  was  not  counted.177  According  to 
the  striking  opinion  of  Rab  Kahana,  if  the  judges  were 
unanimously  in  favor  of  conviction,  the  accused  should 
be  freed.178  In  general,  it  was  held  to  be  better  that 
the  guilty  should  escape  punishment  than  that  one 
innocent  man  be  put  to  death.  The  judges  had  the 
less  hesitancy  in  inclining  to  mercy,  because  of  the 
belief  that  God  would  not  allow  the  guilty  to  remain 
unrequited.179  In  the  story  of  circumstantial  evidence 
quoted  above,  Simon  ben  Shetach  left  the  punishment 
of  the  murderer  to  God.  When  the  Jewish  courts  no 
longer  had  jurisdiction,  it  was  felt  that  God  would 
fittingly  punish  those  who  had  rendered  themselves 


173Except  for  an  adulterer  and  an  adulteress  receiving  the 
same  punishment  for  the  same  sin,  J.  Sanh.  IV,  5.  Tos.  Sanh. 
vii,  2. 

174Mishna  Sanh.  iv,  1 ;  v,  5. 

175Mishna  Sanh.  i,  6;  iv,  1;  v,  5. 

176Mishna  Sanh.  iv,  1 ;  v,  5. 

177Tos.  Sanh.  vii,  2,  ix,  1 ;  Sanh.  32a,  34a. 

178Sanh.  17a. 

"9Deut.  xxxii,  35. 


86  Capital  Punishment  Among  the  Jews 

legally  liable  to  the  death  penalty.180  The  Mechilta, 
elaborating  the  Biblical  words  "For  I,  God,  will  not  let 
the  guilty  go  free,"181  says,  that  if  one  who  is  guilty  has 
been  discharged  by  the  court  as  not  guilty,  he  is  not  to 
be  taken  back  for  a  retrial.  God  has  instruments  and 
means  enough  to  bring  upon  him  the  punishment  that 
he  has  incurred. 

After  an  acquittal  there  could  be  no  appeal;  but 
after  a  conviction  an  appeal  could  be  lodged  at  any 
time.182  If  one  ultimately  was  condemned,  he  was 
given  every  facility  to  escape  his  fate  through  the 
publicity  of  a  herald's  proclamation,183  through  the 
assiduous  attempt  to  elicit  new  favorable  evidence 
even  during  the  procession  to  the  place  of  execution,184 
etc. 

Examples  of  legal  safeguards  could  readily  be  mul- 
tiplied. But  it  is  sufficient  for  our  present  purpose  to 
sum  up  these  details  by  saying  that  the  publicity  of 
the  trial,  the  confrontation  of  the  defendant  and  the 
plaintiff,  the  absence  of  torture,  the  careful  elimination 
of  improper  witnesses,  the  solemn  warning  to  the 
witnesses,  the  searching  examination  of  the  witnesses, 
the  remarkable  requirements  for  a  valid  warning,  the 


180Instead  of  the  required  stoning,  the  culprit  would  fall 
from  a  roof  or  be  trampled  by  an  animal.  Instead  of  being 
burned  by  the  sentence  of  a  court,  he  would  fall  into  a  fire  or 
be  bitten  by  a  snake.  Instead  of  being  executed  by  the  court, 
he  would  fall  into  the  power  of  the  government  or  of  robbers. 
Instead  of  suffering  the  legal  punishment  of  strangulation,  he 
would  die  from  drowning  or  suffocation.    Sanh.  37b. 

181Exod.  xxiii,  7.    Rashi. 

182Mishna  Sanh.  iv,  1. 

«3Sanh.  42b,  43a. 

184Macc.  7a;  Mishna  Sanh.  vi,  1  seqq. ;  Susanna  45;  Moed 
Katan  14b. 


Capital  Punishment  Among  the  Jews  87 

extraordinarily  high  standard  as  to  what  constituted 
evidence,  the  equally  extraordinary  number  of  loop- 
holes allowed  to  the  defendant,  the  limitations  on  the 
court,  forbidding  it  to  deduce  a  capital  punishment  if 
the  Bible  did  not  explicitly  call  for  one,  the  immediate 
acquittal  by  any  majority  of  the  judges,  the  postpone- 
ment of  the  final  decision  if  a  majority  were  in  favor 
of  death,  the  obligation  on  those  who  had  voted  against 
the  death  penalty  of  keeping  their  vote  unchanged  at 
the  second  ballot,  together  with  the  permission  to 
change  their  opinion  granted  those  who  had  voted  in 
favor  of  the  death  penalty,  the  right  of  the  judges  after 
a  condemnation  to  change  their  opinion  any  time  before 
the  execution,  the  constant  public  appeal  for  further 
evidence  until  the  final  execution,  the  prohibition  of 
more  than  one  capital  sentence  being  pronounced  i^i 
one  day,  and  other  innumerable  elements  of  legal  inter- 
pretation and  procedure,  all  worked  to  make  legal 
capital  punishment  impossible  of  practical  application. 

Practise  and  Theory 

In  view  of  the  fact  that  in  pre-Christian  and  the 
earliest  Rabbinic  times  legal  capital  punishment  was 
carried  out,  as  has  been  shown  above,  it  becomes  neces- 
sary to  inquire  when  and  why  the  practise  of  capital 
punishment  ceased  among  the  Jewish  people.  In  Bib- 
lical times,  and  in  post-Biblical  times  when  the  Saddu- 
cees  controlled  Jewish  life,  the  old  death  penalties  were 
carried  out  without  essential  modification.  But  under 
Roman  rule,  a  change  took  place.     Schurer  claims188 

186Schuerer,  (4th  edit.),  II,  261,  note  79;  and  pp.  264,  265. 


88  Capital  Punishment  Among  the  Jews 

that  from  the  very  beginning  of  the  Roman  dominion 
the  Jewish  courts  lost  their  competence  to  judge  capital 
cases.  According  to  the  gospel  according  to  John, 
Pilate  is  made  to  say  to  the  Jews,  "Take  Jesus  your- 
selves and  judge  him  according  to  your  law.  The  Jews 
said  unto  him,  Tt  is  not  lawful  for  us  to  put  any  man 
to  death/  "18e  Talmudic  sources  state  that  forty 
years  prior  to  the  destruction  of  the  Temple,  i.  e., 
30  C.  E.,  the  right  of  deciding  capital  cases  was  taken 
from  the  Jewish  courts.187  But  Rab  Joseph,  R.  Hiyya 
and  the  school  of  Hezekiah  taught,  that  this  right  was 
taken  away  from  the  Jews  by  the  Roman  government, 
from  the  time  that  the  Temple  was  destroyed,  i.  e., 
70  C.  E. ;  adding,  that  the  Sanhedrin  abolished  the 
practise  though  not  the  theory  of  the  four  death 
penalties.188  Of  these  two  dates  given  by  the  Rabbis, 
the  second  is  apparently  correct.  The  earlier  date, 
30  B.  C.  E.,  probably  arose  from  a  misunderstanding. 
The  original  statement  made  by  R.  Ishmael  b.  Jose, 
(end  of  the  second  century),  was  that  forty  years 
before  the  destruction  of  the  Temple,  the  Sanhedrin 
moved  from  the  Temple  and  held  its  sessions  in  a  shop. 
There  is  no  reason  to  doubt  this  statement,  Schurer 
notwithstanding.  But  R.  Isaac  bar  Abdimi  added  to 
it:  "This  implies  that  they  no  longer  judged  capital 
cases."      This  second  statement  is  seemingly  not  an 


186John  xviii,  31.  The  trial  of  Paul  described  in  Acts  xviii, 
12-16,  reflecting  conditions  in  Corinth,  depicts  the  Jew  as 
exercising  jurisdiction  only  in  religious  matters. 

187Sanh.  41a  bottom;  Sabb.  15a;  Aboda  Zara  8b;  Rosh 
Hashana  31a  bottom;  Mechilta  de  R.  Simon  p.  126;  J.  Sanh. 
I,  1,  18a ;  VII,  2,  24b ;  Nachmanides  to  Numbers  xxxv,  29. 

188Sota  8b;  Keth.  30a  bottom;  Sanh.  37b. 


Capital  Punishment  Among  the  Jews  89 

historical  tradition,  but  only  an  inference  drawn  on 
the  theory  that  capital  sentence  could  be  pronounced 
only  in  the  special  hall  of  the  Sanhedrin  in  the  Temple. 
This  inference  is  disproved  by  a  number  of  historical 
facts,  which  show  that  the  Rabbinical  courts  had  com- 
petence in  capital  cases  in  Roman  times  until  the  de- 
struction of  the  Temple  and  of  the  Jewish  State  in 
70  C.  E.  Josephus  mentions  the  reluctance  of  the 
Pharisees  to  impose  the  death  penalty,  contrasting 
them  in  this  regard  with  the  Sadducees.189  He  states 
further  that  when  a  Sadducee  became  a  judge,  he 
would  adopt  Pharisaic  norms  of  judgment,  because 
the  public  would  not  otherwise  tolerate  him.190  Else- 
where191 he  mentions  that  the  Essenes  punish  blas- 
phemy by  death.  These  three  notices,  although  not 
necessarily  referring  to  post-Christian  times,  are 
significant  when  taken  in  connection  with  the  following 
facts.  Up  to  the  time  of  the  destruction  of  the  Temple, 
the  Romans  granted  to  the  Jews  the  right  to  put  to 
death  any  foreigner,  even  a  Roman  citizen,  who  passed 
beyond  the  Temple  limits,192  and  there  is  no  warrant 
for  Schiirer's  supposition  that  this  right  could  be 
exercised  only  after  obtaining  the  sanction  of  the 
procurator.193  Certainly  under  King  Agrippa,  41-44 
C.  E.,  this  Jewish  law  of  capital  punishment  was  in 
force.194  The  story  of  the  trial  of  Stephen195  and  the 
different  accounts  of  the  trials  of  Paul  before  the 


™*Antiq.,  XIII,  x,  6. 
™Ibid.,  XVIII,  i,  4. 
191War,  II,  viii,  9. 
™War,  VI,  ii,  4. 

193Schuerer,  II,  262.    See  J.  Juster,  Les  Juifs  dans  V Empire 
Rotnain,  II,  142,  note  5. 


90  Capital  Punishment  Among  the  Jews 

Sanhedrin,196  although  they  are  often  untrustworthy, 
presuppose  the  competence  of  the  Sanhedrin  to  judge 
capital  cases  at  a  period  later  than  the  year  30  C.  E. 
Anan,  the  Sadducean  highpriest  for  three  months  in 
62  C.  E.,  is  said  by  Josephus  to  have  imposed  and 
carried  out  the  death  penalty.197  Rabbi  Eleazar  ben 
Zadok  cannot  have  seen  the  burning  of  the  high' 
priest's  daughter198  prior  to  40  C.  E.,  since  in  the  year 
70  C.  E.  he  was  still  a  young  man. 

There  seems  therefore  to  be  no  valid  reason  for 
doubting  the  statement  of  R.  Joseph,  R.  Hiyya  and  the 
school  of  Hezekiah,  that  the  Roman  government 
allowed  the  Jewish  courts  a  measure  of  jurisdiction 
in  capital  cases  up  to  the  time  of  the  destruction  of  the 
Temple  in  70  C.  E.,199  but  that  after  that  date  the 
Jewish  courts  were  no  longer  allowed  this  jurisdiction. 
Origen  (d.  254  C.  E.)  says  that  the  Jewish  law  can  no 
longer  punish  the  murderer  or  stone  the  adulteress 
because  the  Roman  government  has  assumed  these 
rights.200  The  Didascalia201  also  remarks,  that  the 
Jewish  law  of  capital  punishment  is  no  longer  in  force. 


184Agrippa's  Letter  to  Caligula;  Philo  Leg.,  39,  quoted  in 
Juster  loc.  cit.,  p.  139,  note  1. 

195Acts  vi,  7  et  seqq. 

196Acts  xxi,  28f ;  (xxiv,  6;  xxi,  29)  ;  xxvi,  21;  (xxiii,  6,  29; 
xxiv,  5,  12ff ;  xxv,  7f .  27 ;  xxii,  24,  30)  ;  xxiv,  6  (8)  ;  xxiii,  3,  9. 

197Antiq.,  XX,  ix,  1.  Jos.  Lehmann,  Revue  d.  Etudes  juives, 
XXXVII,  1898,  pp.  13,  14. 

198See  note  33. 

199Juster,  /.  c.  122-149,  from  a  thorough  examination  of  the 
sources  comes  to  the  conclusion  that  the  Sanhedrin  preserved 
the  right  of  both  pronouncing  and  of  carrying  out  a  capital 
sentence  until  the  year  70  C.  E. 

200In  Rom.  1,  6,  c.  7,  quoted  by  Juster,  ibid.,  p.  150. 

201Didascalia  Ch.  xxvi,  6;  xix,  2.    Juster,  ibid. 


Capital  Punishment  Among  the  Jews  91 

The  Talmud  testifies  uniformly  that  the  Jewish  courts 
had  no  power  over  life  and  death  after  the  year  70  C.  E. 

But  there  are  some  minor  exceptions  to  this  that 
must  be  noted. 

(i)  A  certain  R.  Hama  b.  Tobiyah  caused  Imarta, 
daughter  of  the  priest  Tali,  to  be  burnt.  But  his 
action  was  condemned,  both  because  the  sentence  had 
been  carried  out  in  the  barbarous  non-Pharisaic  method 
that  R.  Eleazar  ben  Zadok  had  seen  in  his  youth,202  and 
because  a  capital  sentence  had  been  imposed  after  the 
destruction  of  the  Temple.203  (ii)  On  one  occasion  a 
certain  Tamar  was  condemned  (although  not  to  capital 
punishment)  by  Rab  Ammi,  Rab  Assi  and  Rab  Hiyya 
b.  Abba  in  Tiberias  (c.  300  C.  E.).  She  complained  to 
the  Roman  proconsul  in  Caesarea  of  this  usurpation 
of  the  Roman  right  of  judgment,  and  the  influential 
intervention  of  Abbahu  was  required  to  protect  the 
Rabbinical  judges.204  (iii)  On  another  occasion,  Rab 
Shila,  perhaps  the  Tana  of  that  name,  caused  a  man 
who  had  committed  an  offence  to  be  whipped.  The 
man  complained  to  the  Roman  government  that  Rab 
Shila  was  exercising  judicial  functions  without  the 
authority  of  the  government.  The  government  sent 
an  officer  to  investigate  the  case,  and  the  complainant 
was  adjudged  by  the  officer  to  have  rendered  himself 
liable  to  the  death  penalty  through  the  offence  for 
which  R.  Shila  had  punished  him.    The  offender  was 


202See  note  33. 

203Sanh    52b 

20*J.  Meg.  HI,  2.  74a.  Graetz  (3rd  edit.),  IV,  284f.  Bacher, 
Agad.  d.  pal.  Amoraer,  II,  94f.  For  a  different  interpretation, 
see  Perles,  Monotsschrift,  XXXVII,  359-361. 


92  Capital  Punishment  Among  the  Jews 

thereupon  handed  over  by  the  officer  to  Rab  Shila. 
But  Rab  Shila  refused  to  consummate  the  sentence,  on 
the  ground  that  since  the  exile  from  Palestine,  the  right 
of  capital  punishment  had  not  been  vested  in  the  Jews. 
Subsequently,  when  the  man  was  about  to  make  a 
second  complaint  about  Rab  Shila,  Rab  Shila  who  had 
been  given  the  staff  of  judicial  authority,  killed  the 
man  with  his  staff.205  (iv)  Another  case  in  point  is  the 
following:  A  man  once  declared  before  Rab  (d.  247 
C.  E.),  that  he  would  persist  in  a  certain  course 
despite  Rab's  warning.  Rab  Kahana  who  was  present 
rose  up  and  killed  the  contumacious  man.  Rab  de- 
clared the  killing  to  be  legally  justified,  but  advised  R. 
Kahana  to  flee  to  Palestine,  since  the  new  Persian 
rulers  were  stricter  in  punishing  bloodshed  than  the 
Romans  had  been.206  (v)  Lynch  law  is  recognized  by 
the  Mishna,  when  it  allows  certain  offenders  to  be 
struck  down  flagrante  delicto.207  (vi)  In  connection 
with  the  remark  that  the  one  born  under  the  planet 
Mars  will  be  a  shedder  of  blood,  Raba  (4th  century) 
said,  'I  was  born  under  Mars';  to  which  his  pupil 
Abaye  remarked,  'Master,  you  also  (as  exilarch) 
punish  and  put  to  death/208  (vii)  Origen  in  his  letter 
to  Africanus   (240  C.  E.)   declares  that  the  Jewish 


205Ber.  58a. 

206Baba  Kamma  117a,  117b. 

207Sanh.  viii,  7.  According  to  tradition,  the  offender  may  be 
killed  flagrante  delicto  in  the  three  cases  there  mentioned,  only 
if  he  has  received  legal  warning  (see  to  notes  153-158),  and  if 
a  lesser  physical  injury  would  be  insufficient  to  prevent  the 
crime.  Mishna  Sanh.  ix,  6  mentions  three  other  cases,  in  at 
least  one  of  which  the  zeal  of  the  one  who  would  strike  down 
the  offender  is  restrained  by  a  number  of  conditions. 

2°8Sabb.  156a. 


Capital  Punishment  Among  the  Jews  93 

Patriarch  in  Palestine  exercised  the  power  of  im- 
posing and  carrying  out  capital  sentences.209 

But  the  utmost  that  these  cases  prove  is,  that  sub- 
sequent to  70  C.  E.,  a  capital  sentence  carried  out  by  a 
Jew,  whether  by  lynch  law  or  after  judicial  trial,  was 
an  exception  occasionally  tolerated  through  the 
generosity,  the  weakness  or  the  corruption  of  the 
Roman  or  the  Persian  authorities.  The  fact  remains 
that  subsequent  to  70  C.  E.,  the  Jewish  law  governing 
capital  punishment  fell  into  disuse.  The  Amoraim, 
although  they  were  the  bearers  of  tradition,  were  not 
familiar  in  practise  with  the  actual  judgment  of 
capital  cases  and  the  imposition  of  capital  punishment. 
It  is  clear,  therefore,  that  many  of  the  dicta  of  the 
later  Rabbis  concerning  details  of  the  law  of  capital 
punishment  are  legal  inferences  rather  than  historical 
facts,  and  many  of  their  discussions  are  discussions  of 
theory  as  to  how  the  death  penalty  would  be  carried 
out  if  the  Rabbinic  courts  should  again  have 
jurisdiction. 

Similarly,  much  of  the  elaboration  of  criminal  legal 
procedure  at  which  we  have  glanced  is  a  theoretic 
development,  dating  from  the  first  centuries  of  the 
common  era,  which  was  never  put  to  a  practical  test. 
Many  elements  in  it,  such  as  the  regulations  governing 
witnesses  and  their  testimony,  are  elaborated  theoret- 
ical developments  of  early  practise.  In  their  fully 
developed  form,  these  regulations  would  have  broken 
down  as  unworkable  at  the  first  touch  of  practise. 
Much  else  is  on  the  face  of  it  dialectic,  legal  discussion 


20»Ep.  ad.  African.  Par.  14.  Juster  /.  c,  p.  151,  note  2. 


94  Capital  Punishment  Among  the  Jews 

conducted  on  the  principle  of  the  meritorious  nature  of 
constant  exposition  and  interpretation  of  the  law. 
This  principle  indeed  is  quoted  in  connection  with  the 
decisions  governing  capital  punishment.210  As  an 
instance  of  this  type  of  expository  discussion,  may  be 
mentioned  the  decision211  that  strangling  should  be  the 
punishment  for  one  who  through  craft  or  force  gets 
another  into  his  power,  forces  him  to  serve,  and  then 
sells  him  into  slavery.  Such  a  ruling  is  hardly  a 
precedent  based  on  practical  experience.  The  dis- 
cussion in  the  Talmud212  proves  it  to  be  only  a  theo- 
retic case.  Similarly,  the  restrictions  governing  the 
treatment  of  the  apostate  city  are  admittedly  only 
theoretic,  since  the  conditions  required  were  so  many 
and  so  specialized  that  they  could  never  occur  together. 
It  is  frankly  confessed,  that  these  conditions  are  only 
the  result  of  study-house  discussion  conducted  for  the 
merit  of  detailed  and  far-reaching  interpretation.213 
In  exactly  the  same  way,  it  is  openly  stated,  that  a  case 
of  the  "rebellious,  gluttonous  son"214  never  had 
occurred  and  never  would  occur,  the  conditions  re- 
quired by  the  Rabbinic  jurists  being  practically  im- 
possible of  occurrence  together.  The  formulation  of 
these  conditions  was  admittedly  only  the  result  of 
dialectic  development.215 
A  passage  was  quoted  above,216  prescribing  imprison- 


210Sanh.  Sib. 
211Mishna  Sanh.  xi,  1. 
212Sanh.  86a. 

213Tos.  Sanh.  xiv,  1 ;  Sanh.  71a. 
ai*See  note  98. 

216Deut.  xxi,  18-21 ;  Mishna  Sanh.  viii,  1-5 ;  Tos.  Sanh.  xi,  6 ; 
Sanh.  71a. 
2"Note  120. 


Capital  Punishment  Among  the  Jews  95 

ment  in  a  kipah  in  certain  cases.  Where  the  Talmud 
asks  what  is  meant  by  kipah,  and  R.  Jehudah  explains 
that  by  kipah  is  meant  a  den  of  about  five  and  a  half 
feet  in  size,217  it  is  clear  that  we  are  dealing  with 
traditions  about  legal  matters  which  had  not  had 
practical  application  within  the  memory  of  the 
Amoraim.  When,  further,  we  remember  the  discus- 
sions among  the  Rabbis  themselves,  such  as  which  death 
penalty  should  go  with  which  crime,  or  which  would 
be  the  correct  method  of  execution,  or  whether  the 
dead  body  has  to  be  hanged  only  in  certain  cases  or 
in  others  also,  and  similar  debates,  it  is  clear  that  we 
often  have  to  do  with  matters  of  theoretic  discussion 
about  which  there  was  no  certain  tradition.  In  fact, 
in  one  passage,  a  legal  decision  concerning  capital  pun- 
ishment is  called  a  decision  that  will  be  of  practical 
application  only  when  the  Messiah  comes  and  the 
Jewish  system  of  capital  punishment  will  be  once  more 
in  use.218 

The  result,  therefore,  to  which  our  investigation 
leads  along  various  converging  lines  is,  that  originally 
the  death  penalty  was  carried  out  through  the  decisions 
of  the  court  approximately  according  to  the  demands 
of  the  Bible.  But  at  least  as  early  as  the  beginning  of 
the  Christian  era,  modifications  had  arisen,  particu- 
larly among  the  Pharisees,  affecting  the  methods  of 
inflicting  the  death  penalty.219  These  modifications 
apparently  grew  out  of  two  chief  causes,    (a)    the 


217Sanh.  81b. 
2isSanh.  51b. 

219E.  g.  Judah  ben  Tabbai  and  Simon  ben  Shetach,  Mishna 
Mace,  i,  6;  Mace.  5b;  Sanh.  37b. 


96  Capital  Punishment  Among  the  Jews 

desire  to  preserve  the  body  from  mutilation  or  dis- 
figurement (possibly  in  part  owing  to  the  Pharisaic 
belief  in  the  resurrection  which  had  not  been  of 
weight  with  the  Sadducees),  and  (b)  the  tendency  to 
extend  the  golden  rule,  so  as  to  make  the  death  penalty 
as  humane  as  possible.  But  the  Rabbinic  courts  lost 
their  jurisdiction  in  capital  cases  at  the  fall  of  the 
Jewish  state  in  70  C.  E.  With  this,  went  the  trans- 
ference of  the  problem  of  capital  punishment  from  the 
realm  of  fact  to  that  of  legal  theory,  and  Rabbinic, 
juristic  imagination  became  free  to  develop  the  field 
of  historical  tradition,  untrammeled  by  the  restraints 
of  practise.  The  compensating  spiritual  inbreeding, 
which  occurred  when  external  manifestations  of 
Jewish  national  life  were  proscribed,  resulted,  in  this 
special  legal  field  as  in  all  other  fields  of  Jewish 
thought,  in  the  over  luxuriant  development  of  the 
theory  of  Jewish  practise.  In  Amoraic  times,  the 
Rabbis  no  longer  recognised  with  certainty  in  many 
cases,  whether  a  practise  was  old  and  traditional,  or 
whether  it  was  a  comparatively  new  development 
based  only  on  theoretic  deduction.  Even  in  early 
Tannaitic  times,  there  was  often  uncertainty  as  to 
what  was  known  through  tradition  and  what  was 
known  through  interpretation.  This  is  brought  out 
very  clearly  in  the  account  of  the  discussion  between 
Hillel  and  the  Bene  Bethera  on  the  question  of  the 
sacrifice  of  the  paschal  lamb  on  Sabbath.220  The 
Rabbis  therefore  often  projected  legal  conceptions 
into  the  past  as  actual  facts.221 


220J.  Pes.  VI,  1  beginning,  33a. 

221Sanh.  53a,  top,  makes  the  claim  that  the  decisions  con- 


Capital  Punishment  Among  the  Jews  97 

It  is  impossible  for  us  to  pick  out  from  the  vast 
accumulation  of  statements,  rules  and  principles 
governing  capital  punishment  according  to  Amoraic 
ideas,  exactly  how  much  is  historical  tradition  founded 
on  actual  practise  and  how  much  only  theoretic  de- 
duction. But  from  the  beginning  of  the  Rabbinic 
period,  we  can  clearly  trace  a  growing  feeling  of 
repugnance  to  capital  punishment,  which,  along  various 
lines,  succeeded  in  making  capital  punishment  obsolete 
through  legal  theory.  Had  the  later  Rabbis  ever  been 
granted  the  right  of  trying  capital  cases,  the  theory 
which  had  been  developed  would  have  made  legal 
capital  punishment  impossible  of  application.  Thus, 
the  Mishna  already  could  say,222  that  a  Sanhedrin 
condemning  to  death  once  in  seven  years  was  called  a 
destroying  or  bloody  Sanhedrin.  Rabbi  Eleazar  ben 
Azariah  (first  cent.)  said  that  it  was  so  called  for 
imposing  the  death  penalty  even  once  in  seventy 
years.223 

It  should  be  plainly  recognised  that  capital  punish- 
ment was  never  formally  abolished  by  the  Rabbis. 
The  penalty  of  death  was  demanded  by  the  laws 
contained  in  the  sacred  statute  book,  the  Bible,  and  as 
such  it  was  accepted  as  needing  no  justification  or 
defence.  But  it  was  legislated  out  of  all  practical 
application  in  the  development  of  the  law.  The  Rabbis 
of  the  Talmudic  era  abolished  capital  punishment  in 


cerning  the  four  methods  of  capital  punishment  are  traditional. 

222Mishna  Mace,  i,  10. 

223It  is  not  unlikely  that  both  statements  represent  historical 
theory  rather  than  historical  fact,  a  suggestion  that  seems  to 
find  support  from  the  words  that  follow,  in  which  Rabbi 
Akiba  and  Rabbi  Tar f on  claim  that  had  they  been  members  of 


98  Capital  Punishment  Among  the  Jews 

the  only  way  open  to  them, — in  theory,  as  they  would 
undoubtedly  have  abolished  it  also  in  legal  practise 
while  retaining  it  as  a  dead  letter  on  the  fundamental 
statute  book,  the  Bible,  had  Jewish  national  inde- 
pendence been  regained  in  their  day. 

Post-Talmudic  Development 

A  few  words  should  be  added  relative  to  the  de- 
velopment of  the  idea  of  capital  punishment  among  the 
medieval  Jews. 

In  post-Talmudic  times,  the  problem  of  capital 
punishment  according  to  Jewish  law  scarcely  arose. 
Although  the  theory  of  it  had  been  fully  worked  out, 
there  were  no  occasions  for  the  application  of  the 
theory,  both  because  the  Temple  no  longer  stood  and 
the  Jewish  courts  had  no  jurisdiction,224  and  because 
after  the  interruption  of  Semicha  (ordination),  no 
judges  were  regarded  as  competent.225  This  statement 
is  true,  however,  only  with  certain  limitations. 
Although  as  a  general  rule  the  Jewish  courts  in  the 
diaspora  had  no  jurisdiction  in  capital  cases,  there 
were  times  and  places  in  which  the  power  of  imposing 
the  death  penalty  was  vested  in  the  Jewish  courts. 
Thus  Asheri  (c.  1300)  wrote :  "In  no  country  of  which 
I  have  heard  have  Jews  their  own  courts  for  the  trial 
of  criminal  cases  except  here  in  Spain.  It  was  a 
source  of  great  astonishment  to  me  when  I  came  to 
Spain,  that  the  Spanish  Jews  should  try  criminal  cases 


a   Sanhedrin,   the   death    sentence   would   never   have   been 
imposed. 

224See  notes  104  and  105. 

225Tur,  Hoshen  Mishpat,  I.  3. 


Capital  Punishment  Among  the  Jews  99 

without  the  full  and  authorized  Sanhedrin ;  but  I  was 
informed  that  this  was  done  in  accordance  with  an 
order  of  the  government."228  Similarly,  we  find  the 
Jews  of  Tudela  asking  the  viceroy  of  Navarre,  "That 
he  would  be  pleased  to  order  and  that  we  practise  the 
Jewish  law  as  our  ancestors  have  hitherto;  that  is, 
when  a  Jew  or  Jewess  commits  a  sin,  on  our  magis- 
trates applying  to  the  bailiff  and  notifying  to  him  the 
sin  committed,  and  the  punishment  it  deserved 
according  to  Jewish  law,  the  bailiff  shall  execute  it, 
and  enforce  the  sentence  of  our  said  magistrates, 
whether  of  condemnation  or  acquittal;  or  of  any 
demand  from  one  Jew  to  another,  as  we  have  been 
accustomed,  not  affecting  the  rights  of  our  lord  the 
king."    This  right  was  granted  them.227 

Asheri  himself  unhesitatingly  imposed  the  sentence 
of  death  on  an  informer.228  The  Moser  (informer, 
delator),  constituted  so  poignant  a  danger  to  Jewry  in 
exile,  that  the  death  penalty  was  not  infrequently 
consummated  in  his  case.  Jewish  law  gives  the  right 
to  kill  the  informer,  on  the  principle  of  life  for  life. 
Since  he  is  seeking  your  life,  you  are  justified  in  saving 
your  own  by  taking  his.229  The  death  sentence  on 
the  Moser  was  pronounced  by  the  Jewish  community 
and  carried  out  by  the  non- Jewish  authorities  to  whom 
the  convicted  delator  was  handed  over.  Maimonides 
(12th  cent.)  declares  that  it  regularly  happens  in  the 
cities  of  the  West  that  they  kill  informers,  or  hand 


"eResponsa  XVII,  8.   Cf.  Teshuboth  Ha-Rashba,  II,  290. 
227Lindo,  The  Jews  of  Spain,  p.  150f. 
228Responsa  XVI.  1. 
22»Ber.  62b,  72a. 


100         Capital  Punishment  Among  the  Jews 

them  over  to  the  non- Jews  to  be  killed  or  dealt  with 
according  to  their  guilt.230 

Similarly,  Asheri's  son,  Jacob,  in  conjunction  with 
a  tribunal  of  Rabbis  in  Toledo,  condemned  to  death  the 
informer  Joseph  ben  Samuel  and  handed  him  over  to 
the  royal  executioner.231  Joseph  ibn  Migas  of 
Lucena  (d.  1141)  caused  an  informer  to  be  stoned  on 
the  eve  of  the  day  of  Atonement.232  Others,  who 
approved  of  the  extermination  of  informers,  or  who 
actually  passed  the  sentence  of  death  on  them  and 
handed  them  over  to  the  State  authorities  for  execu- 
tion, were  such  leaders  of  Spanish  and  North  African 
Jewry  as  Jonah  Gerondi  and  Solomon  ben  Adereth 
(c.  1280), 233  Isaac  ben  Shesheth  (14th  cent.),  Abraham 
Benveniste  (1432),  Simon  ben  Zemach  Duran  (1400), 
and  his  son  Solomon.  In  the  particular  case  in  which 
Jonah  Gerondi  and  Solomon  ben  Adereth  acted  as  the 
judges  (c.  1280),  the  family  of  the  informer  tried  in 
vain  to  stir  up  the  non-Jewish  authorities  by  declaring 
that  a  judicial  murder  had  been  committed.  They 
claimed  that  according  to  Jewish  law,  the  Jews  had 
long  foregone  the  right  of  imposing  a  capital  sentence, 
that  the  sentence  had  not  been  pronounced  by  a  San- 
hedrin  of  twenty-three,  etc.  The  authorities  refused 
them  a  hearing.  But  Solomon  ben  Adereth  found  it 
necessary  to  justify  the  action  that  had  been  taken. 
He  therefore  submitted  the  case  in  all  its  details  to  the 


230Yad,  Hilchoth  Hobel  u-Mazzik,  viii,  2. 

231Judah  ben  Asher,  Responsa  Zichron  Jehuda  f.  55b, 
No.  75,  quoted  by  David  Kaufman,  Jew.  Quart.  Rev.  1896, 
VIII,  pp.  219f. 

232Ibid. 

233Responsa  of  Rashba  V,  290. 


Capital  Punishment  Among-thc  'fc'ibs  ;1*01 

Rabbis  of  North  France.  Only  one  answer  has  been 
preserved, — that  of  Rabbi  Meir  of  Rothenburg,  who 
clearly  and  decidedly  ranks  himself  on  the  side  of 
Ben  Adereth.234  But  it  will  be  seen  that  in  all  these 
cases,  the  utmost  power  that  was  allowed  to  the 
Jewish  tribunal  was  that  of  pronouncing  the  sentence 
of  death.  The  consummation  of  the  sentence  was  left 
to  the  State  authorities.  On  Aug.  21,  1379,  at  the 
request  of  a  delegation  of  Jews,  the  royal  farmer  of 
taxes,  Joseph  Pichon,  was  beheaded  as  an  informer  by 
the  royal  executioner.  One  result  of  this  affair  was, 
that  the  Cortes  issued  the  following  decree,  depriving 
the  Rabbis  and  the  Jewish  courts  of  the  country  of  the 
right  of  deciding  criminal  cases:  "We  ordain  and 
command,  that  henceforward  it  shall  not  be  permitted 
for  any  Jews  of  our  kingdoms,  whether  rabbis,  elders, 
chiefs  or  any  other  persons  that  now  are  or  shall  be 
hereafter,  to  interfere  to  judge  in  any  criminal  cause 
to  which  death,  loss  of  limb  or  banishment  is  attached ; 
but  they  may  decide  all  civil  causes  that  appertain  to 
them  according  to  their  religion.  Criminal  cases  shall 
be  tried  by  one  of  the  Alcaldes,  chosen  by  the  Jews  in 
the  towns  and  places  of  their  respective  jurisdictions.... 
This  is  to  be  understood  for  those  criminal  cases  that 
have  hitherto  been  tried  by  the  said  Jews....235  Subse- 
quently, owing  to  the  influence  of  Abraham  Benveniste, 
this  right  of  judging  criminal  cases  was  restored  to  the 
Jewish  courts  in  Spain. 


23*Kaufmann,  Ibid,  pp.  221-238  gives  all  the  details  of  this 
interesting  leading  case. 

235Lindo,  Jews  of  Spain,  160-162.  Graetz,  Geschichte, 
VIII,  44. 


192         Capital  Punishment  Among  the  Jews 

But  this  power  could  hardly  be  exercised  outside  of 
Spain  and  North  Africa,  and  in  those  lands  it  could  be 
exercised  only  in  favorable  periods.  In  Angevin 
England,  "Criminal  cases  between  Jews,  except  for  the 
greater  felonies,  as  homicide,  mayhem,  etc.,  could  be 
decided  in  the  Jewish  courts  according  to  Jewish 
law."236  In  other  lands  also,  the  Jewish  courts  were 
sometimes  empowered  to  try  lesser  criminal  cases ;  but 
rarely,  if  ever,  could  they  independently  impose  and 
carry  out  the  death  sentence.  At  a  later  period,  the 
Kahals  in  Eastern  Europe  were  granted  autonomous 
jurisdiction  in  civil  cases.  But  their  greatest  power 
hardly  exceeded  the  right  given  them  in  Lithuania  by 
charter  of  King  Michael  Wishnevetzki  (1669-73),  "to 
summon  the  criminals  before  the  Jewish  courts  for 
punishment  and  exclusion  from  the  community  when 
necessary."  Rabbi  Meir  Sack  emphatically  protested 
against  buying  the  freedom  of  Jewish  criminals  from 
the  authorities.  "We  should  endeavor  to  deprive 
criminals  of  opportunities  to  escape  justice."  Similarly, 
Meir  Lublin  declares  that  the  death  penalty  for  a 
murderer,  decreed  by  the  law  of  the  land,  should  be 
allowed  to  be  consummated,  if  the  murderer  were  a 
Jew.237 

It  may  be  stated  broadly,  that  after  the  Roman 
period,  the  right  of  pronouncing  the  death  sentence 
was  only  rarely  granted  to  the  Jews,  while  the  right  of 
inflicting  capital  punishment  was  practically  never 
vested    in    the    Jewish    community.      Theoretically, 


286 Jacobs,  Jews  of  Angevin  England,  pp.  331,  43,  49. 
M7Responsa,  138,  Jew.  Encycl,  Art.  Lithuania. 


Capital  Punishment  Among  the  Jews  103 

Jewish  legal  opinion  gave  to  the  leading  authorities  of 
the  generation  or  of  the  district,  the  right  to  act  as  a 
competent  Sanhedrin  of  twenty-three  in  judging 
criminal  and  capital  cases,  on  urgent  occasions  of 
popular  wrongdoing.238  But  this  right  could  so  rarely 
be  exercised  that  it  became  virtually  obsolete. 


288Tur  and  Shulchan  Aruch,  Hoshen  Mishpat  ii.    Cf.  the 
exemplary  punishments  referred  to  above,  notes  14  and  80. 


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